Recent Posts in Family Law Category

Leaving the courthouse after a complete and total victory is a great feeling, especially when you firmly believed in your case.  However, it is a rare experience in domestic cases such as divorce or custody cases.  It is much more common at trial that you win on some issues, lose on others, and you end up somewhere in the middle of what you wanted and what the other party wanted.  In other words, you end up very close to where you would have been if both parties had settled prior to trial.  In such cases, it makes much more sense to settle instead of experiencing the time, expense, and stress of a trial.

There are too many benefits to voluntary settlement to mention, but I want to focus on a few key benefits.  First, you gain control of your situation.  Judges know the law, but they do not know you or your family.  Courts are overloaded with cases, so you rarely have enough time to present your case at trial.  As a result, judges end up making huge decisions that effect your family without even knowing your family adequately. 

Second, judges will decide your case on the law and generally treat you the same as everyone else.  While fairness and impartiality may generally good character traits for judges, this may not be what is best for your family.  Your family may have unique issues that need unique solutions - not a generic, cookie-cutter solution that the law often requires.  For example, if you want the flexible custody arrangement that works  for your unique needs, you are much more likely to achieve that result through settlement than with a trial.  Also, judges are human and make mistakes.  No matter how strong your case is, you always face a huge risk at trial that the case will be decided against you because the outcome is always unknown. 

Third, you truly save a huge amount of time and money by reaching a settlement.  What may be even more important is the amount of grief and stress you will avoid.  Litigation is always difficult, and when it involves your family, it is even more stressful.  It is not even just the time you spend in court or preparing for court - it affects you every day as you think and stress out about what is going to happen.  Even when it is over, the parties involved will likely have animosity toward each other that do not go away for a long time.  Voluntarily settling your case can help you move on with your life and get along better with the other party.  If you have children together, this is extremely important because you will be dealing with that other person for the rest of your life, and your children will be better off if you can get along.  If the two parents cannot get along, the children suffer the most.  Therefore, this may be the most important reason to settle amicably rather than ongoing litigation and animosity.

Despite the benefits of voluntary settlments, many cases do not settle.  Sometimes this is because one or both parties is simply unwilling to compromise.  There is no such thing as a settlement where you get everything you want and do not give up anything.  If that were the case, the other side would not agree.  Before you start negotiations, you should identify realistic goals and create a plan to achieve those goals.  As part of this process, you must prioritize your goals and identify concessions you can make to help you accomplish your most important goals.  It is difficult to make concessions and compromise, but it helps if you focus on what you are gaining rather than what you are giving up.  It is also better if you demonstrate that you believe in your case and you are willing to take it to trial if necessary.  Even though you hope to avoid trial, you have more leverage in negotiations if the other side knows you are not desperate to settle.  If you do this properly, and the other side is reasonable, you should settle your case much sooner and more satisfactorily than you would through trial. 

Sometimes the other side is unreasonable and will not negotiate in good faith or make any efforts to compromise.  Other times the issues at stake are too important to compromise.  For example, your child's other parent is abusive but wants custody.  In these situations, you must fight for your rights at trial.  You should get a competent attorney who is experienced in handling your type of case.  Although there is a huge risk when you go to trial, you never know, you just might get to experience the wonderful feeling of leaving the courthouse with a complete victory.

I learned a big lesson this last week or so.  A few months ago, my client and I went to a temporary orders hearing where the other side was asking for all sorts of money and trying to raise some serious doubts about what my client's real earnings - and therefore, his real ability to pay her huge requests - was.  We didn't do horribly at the temporary orders hearing, but we didn't do very well either, and the judge noted that he had a lot of skepticism about what my client's true income was.

Fast forward a few months, and we were at the trial.  Our whole strategy was getting around this "skepticism" that the judge had about my client's income.  With the extra time that we had at trial (compared to what we had at the temporary orders hearing), we were able to call my client's boss, who spoke very clearly and very convincingly about what my client was actually making.  With the additional time, my client was also able to give very specific testimony about his work, his accounts (including names and dates), and his actual income.  I was also able to get his wife to admit - she actually admitted this! - that she really didn't know what his job duties were, and his testimony on the subject would be a lot more reliable than her conjecture.  At the close of the trial, the judge went out of his way to tell us that the skepticism he had about my client's income was now gone.

The moral of the story?  I think there are two of them.  First, don't give up.  We have the ability in family law cases to resolve concerns and straighten things out, as long as the truth is there, and it really supports our position.  Second, adjustments.  Court proceedings are a lot like sports, where making half-time adjustments, so to speak, is extremely important.  It's an ongoing battle, and whoever can make the appropriate adjustments many times will end up with the upper hand and win.  Sure, it depends on the actual facts of the case, and no lawyer can change facts (and an honest lawyer won't even try to change to facts).  But it is very nice to stick with something, make those adjustments and come out on top.