This is a repost of an excellent article by a Chicago divorce attorney with 48 years of practice. He basically points out that virtually all divorces in which there are any means settle outside of Court, but not before it ends up costing the parties a good chunk of the money they have collectively saved. In my experience there are three things that cause people to go to Court rather than settle differences outside of Court.
1) They do not understand the law very well:
This should be obvious, but most people neither really understand the legal rights and obligations we owe our spouses when our marriages break up. They also rarely understand the local judges and the types of decisions they render. Judges are people too and they have massive caseloads, which is why their decisions can be roughly predicted based on the facts in the case. This is in no way a criticism – in fact, when the decision processes and outcomes are largely known before you go into Court (and an experienced lawyer can help you understand not only what the law says but what the Courts are likely to do given your facts) they can better settle your case for you with the most minimal cost. When you go to Court, either against your lawyer’s advice or on your own, you put yourself at the mercy of the Court. You often don’t really get the chance to tell your story (and if you do, there are so many stories that judges simply don’t have the time to give them anywhere near the amount of deep thought you have given them). And while your story is novel to you, to the judge it is just another story that sounds like many other stories that have gotten in front of her.
2) They are emotional:
Yes, we are all emotional during a divorce. It is probably the most emotional time in our lives. But because of that, in California at least we have so-called “no fault” divorce. Judges want to keep the emotion out of the courtroom – the issue is not who had an affair or who yelled loudest or whatever, the issue for the judge is how do we divide assets a efficiently as possible as quickly as possible? Support levels are really the major issue for most divorcing couples where one party may well be writing the other party a check for many years to come (whether for spousal or child support or both). But the law accounts for this too, trying to keep the emotion out things. Support levels are generally set by a combination of a State child support calculator (attorneys and Courts use the Dissomaster program) and the local rules – which again, the two lawyers representing you already know and you don’t.
If I have any rule of thumb about support payments it’s this: the support payment will equal more money than the supporting spouse believes he or she can possibly afford to pay and less money than the supported spouse possible believes he or she can live on.
3) The children:
Ok here is the most emotional issue of all for most parties in a divorce and the reason why many both go to Court and stay in Court after they get there. One party wants more time with the children, believes he or she should have more time with the children and believes that the children should have more time with him or her. This is a very difficult and very emotional issue. Both parties feel the “best interests of the child” involve the child spending more time with them. Tons and tons of research in the area leads both sides to have a lot of ammunition about whether children are better off with good dads or good moms. Judges are forced to make decisions quickly and in many instances the decisions are not really what either party wants.
Child support is calculated on a mix of differential in income AND timeshare, so timeshare fights over the children also usually entail deep financial consequences. Mom can’t stay in the home if Dad won’t pay child support at the 80%-20% plan. Dad can’t afford to get a new home for him and the children without paying support at the 50%-50% level. What to do? In my opinion, the best strategies are compromise strategies. Dad (in this case, but it could be Mom), pays a little more support than he wants but gets more time with the kids (breaking support from timeshare). Mom gets a little more money than the timeshare would require gives up some time with the kids. The result is a workable plan – truly workable – where the kids are able to see both parents regularly and both parents have the time to rebuild their lives.
Get an Attorney at the Beginning
You might think this is self-serving, because I am an attorney, but it’s very important that you consider working with an attorney toward a settlement agreement as quickly as possible. This saves you the preliminary hearings where judges make quick “temporary” decisions that tend to become the rule of the case. If these early decisions were truly temporary decisions, parents could come together balancing the cost of litigation at $245 an hour or more (for 25-30 hours of attorney time apiece – or roughly one year’s worth of college tuition at the University of California!) against the cost of some additional support.
Do not get me wrong. There are absolutely times to fight it out in Court, particularly where the children are in real danger. But you need a good attorney who can help you understand when this time is and when it is not. Working together with legal counsel, both sides can have a true negotiation in which they understand their rights and obligations toward each other and what the Court is likely to do in their case. Then they can sit and negotiate fairly and with as limited emotion as possible, getting things worked out the right way, outside of Court. Litigation should always truly be the last resort, but if it comes after negotiations between the parties and their attorneys, then you will be prepared.
As always, this blog is my own opinion and does not constitute legal advice. It also does not form an attorney-client relationship.