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.
