Understanding the risks associated with trial and mitigating those risks with an effective negotiation strategy can be one of the most important parts of divorce.
At some point you will almost certainly be told that it is better to settle your case rather than go to trial. In fact, the likelihood is that you will probably be told this several times by several different people, including your lawyer and the judge who ultimately hears your case.
Why do we say this, and what exactly do we mean?
There are actually several reasons that this statement is true. I will give you the list of reasons first, then go in a little bit of detail for each one. Some of the reasons that it is generally better to settle your case as opposed to go to trial are:
1. You have greater control over the outcome of your case when you negotiate a settlement.
2. Ultimately if a case goes in front of a judge, you can never truly predict, with any certainty, exactly what the judge will do.
3. Taking someone to court is a highly adversarial process. In family law cases, the adversarial nature of the process can set a very negative tone for the parties’ interactions for years and years to come.
Now let’s talk about each of these in a little more detail.
You Have Greater Control Over the Outcome of Your Case When You Negotiate a Settlement
If you are involved in a family law matter, the last thing you probably feel is “in control.” However, you may have a greater ability to influence the outcome of your case than you realize.
What many clients often fail to realize is that if a case goes to court, there are a large number of things that, in reality, judges cannot, by law, do. This can actually be a hard concept for many clients to grasp. I have had more than one client tell me “But judges can do whatever they want, that’s what judges do!”
Similarly, there are several situations where, even if a judge does not want to do something, the law may require him or her to do that thing anyway (a good example that many people are familiar with would be mandatory sentencing guidelines for criminal cases).
So why is this important?
It is important because while there are several things that judges cannot do – if the parties negotiate and come to an agreement, the judge can approve that agreement and make it a court order…even if what the parties’ are agreeing to is something that the judge could not do him or herself.
Here is an example that I (and many other lawyers) use to illustrate this point. In Virginia, no court has the ability to order any parent pay for the college education of any child. All a court can do is make a parent pay child support until a child turns 18 (or 19 in some cases). After the child turns 18, any obligation to support the child ends.
However, if the parties enter into a signed, written agreement to pay for the college expenses of a child, then the court can “incorporate” that agreement into a court order. The end result is that the parties are now bound by that agreement and order – and can actually be punished for non-compliance.
Hopefully you can see that by negotiating an issue like this and coming to an agreement, parents can actually accomplish more than if they go to court. And this is only one example. There are numerous situations where a court’s ability to divide property, order that property be sold, order support, etc. – are all limited by the law.
Ultimately if a Case Goes in Front of a Judge, You Can Never Truly Predict, With any Certainty, Exactly What the Judge Will Do.
In a divorce case, it is easy to become entrenched in your own view – and forget that it is possible for two different people to view the same situation in different ways. Consider child custody issues. There are as many opinions about child rearing as there are parents. There are some parents who approve of corporal punishment, other who never use it. Some parents put more emphasis on sports and activities, others less so. There are even some parents who feel especially strongly that children need the experience of attending ‘sleep-over’ summer camps, where the children live away from their home for several weeks. There are other parents who would never consider this.
Judges are the same way.
In many areas of family law, a judge has “discretion” to order whatever he or she thinks is appropriate. This means that there really is no set plan or formula that a judge has to follow. The judge is free to do just about whatever he or she wants (within certain limits, of course). As a result, different judges can (and often do) make vastly different decisions based on the same set of facts.
As lawyers, we try to develop a general sense of how different judges handle particular issues. But that is all it is – a vague sense of what may happen.
When you are dealing with immensely personal and important issues like your personal finances or how to raise your children – you are putting the judge in a position of making decisions about these issues. At that point a judge can make almost any decision that he or she feels is appropriate, even if it is a decision that both you and your spouse are unhappy with.
The Decisions You Make Now About Working Together Will Set the Tone of Your Interactions for Years to Come
Unfortunately, the legal process is adversarial. This means that it often has a tendency to pit spouse against spouse, rather than encourage a cooperative approach between the parties. There is some evidence that this adversarial tone can continue long after the court case has been resolved.
Robert Emery, Ph.D. of the Center for Children, Families and the Law at the University of Virginia published a study in 2001 that compared the long term outcomes of custody cases that were litigated versus parents with custody disputes that had resolved their cases with mediation. The results demonstrated that parents who mediated, and therefore resolved their differences in a more cooperative way than litigation, enjoyed consistently better relationships with their children.
It follows that this line of thinking would apply to other aspects of divorce as well, not just custody and visitation. Realizing this, clients are well advised to think carefully about how overly aggressive litigation goals can impact them in the long term.