Divorce Litigation

I want to begin by stating that there are some couples who are not willing to negotiate anything. The anger from the marriage colors everything and these couples take their anger into the legal system--and into the divorce. These people proceed to trial regardless of who gets hurt. The people to get hurt are most likely the children. The majority of cases, however, with concerted effort from the parties involved, can be settled out of court.

All issues must be resolved before a divorce can be final. These issues are Child Custody, Child Support, Visitation, Division of Marital Property, and Alimony.

Many Divorce Cases are Settled Easily
In my experience, difficult though it may be to imagine, the most emotional issues of Child Support, Child Custody, and Visitation, are usually the easiest to resolve. In the most common scenario, the divorcing parties acknowledge that they love the children equally and can agree on who should have physical custody and how visitation for the non-custodial parent should be scheduled.

What Happens When a Divorce Settlement Cannot be Reached?
However, sometimes the parties cannot agree. If this is the case, there are several options. Sometimes a professional evaluator is appointed by the court to interview all parties and make recommendations to the court concerning who should have custody and how visitation should be distributed. The evaluator is someone who specializes in this field.

Sometimes the court appoints a Guardian Ad-Litem. This is usually an attorney who works with the court and is appointed to represent the child's best interests. Then he conducts the evaluation. He interviews all parties and makes recommendations to the court.

The third possibility, and least useful, occurs when each side in the divorce contest hires professionals who are recommended by their attorneys. As one might imagine, these two "hired guns" cancel each other out as they join the legal battle and the "best interests of the children" get missed.

I personally believe that, though independent evaluators are better than "hired guns," the best option is to avoid the costly and painful investigations by third parties. It is in everyone's best interests, I believe, to find a good family therapist to help keep the “best interests of the children” in focus, to avoid the legal contest, and to keep judges and juries out of deciding about children's welfare. This means the parties have to negotiate and talk to each other--with the help of a third party and better a therapist skilled in this area. To avoid a war over the heads of the children is in their "best interests."

Questions of Child Support are not really issues in most states because the amount to be paid is based on a percentage of the non-custodial parent's gross income. This percentage is determined by the amount of children and can be increased or decreased based on several additional factors such as extraordinary medical bills, therapy bills, and issues of private schooling already established.

Dividing and Distributing Marital Property is Often Difficult
It is my experience, that the issue that is the most difficult to settle is the Division of Marital Property. Marital Property constitutes "any property acquired DURING the marriage.” Property brought into the marriage is NOT Marital Property. Property includes real (real estate) and personal (that property consisting of tangibles belonging to the parties).

A settlement that pleases everyone is difficult to attain but can be accomplished if everyone can keep the emotional levels down and remember that the decisions made now will affect how everyone gets along later. Therefore it is important to avoid trying to “win" at this. This can be difficult because the battle to win or lose was probably going on in the marriage and is part of what propelled the parties into divorce. However, civility is required here and the parties need to barter with the remembrance that everyone did, usually, contribute to the community of the marriage and everyone should share in the division of its assets.

A settlement that is disproportional is not beneficial to either party. The loser will take the bitterness with them after the divorce.

Divorce Mediation
If a settlement cannot be reached, couples are usually sent to a mediator. This is mandatory in some states. This is the last step before trial and is a powerful tool for reaching a settlement. Some couples fail at mediation but that sends you to trial so I would hope that you would remember to "give a little, gain a lot."

Taking a Divorce to Trial In Court
If everything now fails, a trial will be necessary. This may be either a jury trial or a bench trial (judge only). In either case, it is brutal, harmful, and hurtful, as the allegations fly from both sides. The after-effects will last a lifetime. Also, please remember this: the results achieved will not exceed those that could have been reached in a settlement.

There are some attorneys who disagree with me as to whether it is best to go to trial. I respect their opinion (remembering that it is more expensive to go to trial than to settle). I continue to believe that what is best for the client is to stay out of court. The resulting pain and anger and disruption to the family is damaging to everyone except the attorney.

If clients can remember during the settlement process to remain civil, generous, and thoughtful, the best outcomes can be reached.

 

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