Most divorce cases settle. Settlement does not necessarily mean both parties thought the agreements were fair. Some couples either got tired of fighting or the money ran out or high emotions, blame, and rancor subsided and solutions that may not have been attractive earlier became more so. Some couples were mature enough in the end or the even the beginning to be reasonable, put their children’s needs first, maybe even be generally respectful, and were able to find a result they each could live with and, in the best of cases, fair. Fairness is, however, an abstract concept. It depends on perspective and perspectives can legitimately differ. So, asking whether an agreement is fair is not always the best criteria for determining what is a “good” agreement.
Few cases should go to trial but end up in trial because of out-of-control circumstances like the following:
- Someone feels so wronged that he or she has to tell their story to the judge and believes that the judge will make it right. Wrong!
- Some are so angry that the anger has consumed them and there is no ability any longer to be rationale. Only a judge’s decision can stop the continuing flow of money and emotional harm. Often, they sadly learn that the harm done by the process leaves a wake of continuing chaos.
- Sometimes a spouse wants revenge and fails to consider consequences to themselves or the family. A wise Chinese proverb states: “Those who seek revenge need to dig two graves.”
- Some have a pervasive need to be right, and being right is more important than the family or the consequences. Most will be disappointed in the result.
- Some believe a principal they hold dear is at stake. Even if the “principal” is legitimate, the principal may not prevail and few “principals” are worth the emotional and financial cost, especially if there is a family involved.
- Sometimes one or both attorneys are very litigious. Good luck!
- Sometimes an attorney has such a difficult client that he or she is reluctant to advise settlement because the client will blame the attorney and may file a Bar complaint. The decision of a judge gets the attorney off the hook.
Some cases like the following are appropriate for trial:
- Sometimes each party has a legitimate difference of perspective and no resolution can be agreed upon so there is no place to go but to the judge. Perhaps someone’s perspective will prevail in court; perhaps each will get half a loaf.
- Sometimes there is a legitimate legal issue that the law needs to revisit or clarify. These cases are few, usually complicated, cerebral, and often end up being appealed. Decisions from this type of case may make new law or new interpretations of the law and the next person with a similar set of circumstances may not have to turn to a judge. The law may be clearer.
Message: Even when there is a good reason to go to trial, emotional and financial havoc is still a result so one needs to consider carefully if it is worth it. Outcomes of trials are seldom predictable; parties will lose even more control over their lives, and the experience of trial often leaves the family in tatters. Parents who go to trial often irreparably damage their ability to continue to parent together as successfully as they would have been able to without the trial. The havoc of any ugly divorce, trial or no trial, consumes the children as well. Even if you go to trial and win the battle, you may have lost the war.
Recommendation: The healthiest way to get a divorce is to mediate. If you want representation in conjunction with the mediation process, consider using an attorney you know is supportive of mediation and will work cooperative with the process. If mediation is not an option for you, choose attorneys to represent you in the legal process who are committed to COOPERATIVE REPRESENTATION.TM Collaborative Law is also an option. This is a process which is oriented around certain requirements for the use of other experts in a team approach. An attorney who practices Collaborative Law would, most likely, also be an attorney who would provide you with COOPERATIVE REPRESENTATION.TM