Friday, August 15, 2014

Should You Negotiate Or Litigate Your Divorce?

When a husband and wife are facing the emotional and psychological turmoil of a divorce, a question that must inevitably come up is whether the parties should seek and out-of-court settlement or would they be better off taking the matter to trial.   This is probably the most critical question you will face in your divorce and there are pros and cons to each approach.
Letting the Judge Decide
If parties, cannot, or will not settle out of court, then the alternative is to let the family court decide.   A family judge is a county judge, but unlike district judges, they only deal with matters that fall under the Texas Family Code.  This judge is supposed to act with impartiality and without any preconceived ideas about your case until they have heard the evidence presented by each side.  Bringing a case to court has significant risks because you must convince a judge about every aspect of your case that you are trying to get from custody of your children to who gets the lawn mower.  Most people have a skewed idea of what court is about.  They think it is a stage in which they just have portray their spouse to be the worst human on earth and therefore they should give everything to you – “the good guy”.  But the fact is that such unfocused mud-slinging very rarely will sway a family judge one way or the other.  Parties really need to present their case in a way that will follow the strict rules of what can and can’t be said and at the same time prove each point in the case you present.  When you choose litigation, you are putting all your trust into your attorney that he will present the best case for you and in the court system that they will do the just thing.    This may the only option you have if the settlement offers from your spouse are less than what is fair and equitable and are far less than you think the judge would give you in court.  On the other hand, if the settlement offer is close enough to what you could reasonably get in court, and the high cost of taking it to court and the risk you face in that “all or nothing” game make it not worth the trouble of taking it to court, then parties should choose to settle it out of court.
Communication Is Key To Settlement
If you are one of the very rare few spouses who maintain good communication and respect through the divorce process then you may be able to settle matter on your own and perhaps you and your spouse may utilize your attorneys only in an administrative capacity to help make sure the legalities are done correctly.  However, in my experience, less than 1% of all divorce cases are resolved in this way.  Most couples lack communication and/or respect by the time they file for divorce, or they will lose this ability by the time the case reaches the negotiation phase.  For the other 99%, they lack the ability to communicate and cooperate.  Under these circumstances it may be nearly impossible to settle your issues and avoid court.  Fortunately that does not mean all these couples are fated to have a contested trial to end their case.    In Texas, there are a whole range of procedures to help couples who can’t communicate to nonetheless settle their case.  These procedures are called Alternative Dispute Resolution.  These are private meetings outside court system which are designed to bring about a mutually agreed settlement.  In divorce cases, we most commonly use a process called mediation, but there are many other procedures such as settlement conferences, mini-trials and arbitration that can be tailored to your cases’ needs.

Which Is Right For Your Case?
I believe that each client is an individual with unique needs, and so each divorce case is also unique and will be successful or not depending on the attention to those special details.   If you are facing a divorce, you should begin to think about those details.  Depending on where you are in the emotional process, this may be hard, but the earlier you begin to think strategically about your case, the better will be the outcome.  What are your plans for the future?  Will you remarry?  Do you plan to have any more children?  Will you purchase a new house?  Will you start a new job?  Money is always a very important issue in considering whether to go to trial or settle.  At the earliest stage, many people try to avoid attorneys altogether so save money.  What these people fail to understand about settlement and negotiation however is that it will only work if both parties are negotiating from a position of strength.  The threat of the other side winning everything at trial is what motivates people to settle before it gets to trial.  The only way for you to be able to have that strength is to hire a reputable, experienced attorney who is ready and able to take the case all the way- and win.