Perhaps beginning with the epic film “Kramer v. Kramer,” and the exploits of Arnie Becker on “L.A. Law,” the public has a perception that divorce means some epic and painful courtroom battle. In reality, most divorce cases end in a settlement without a trial. Why such disconnect between perception and practice?
The media has played a significant role in the process. The more people see courtroom dramas play out on the big or little screen, the more people believe justice involves a showdown in court. Amicable mediation would make poor television apparently, so all we see are the conflicts and the idea of winners and losers.
In all civil litigation, and in fact criminal law as well, the vast majority of cases never go to trial – they settle out of court (and in the criminal context result in a negotiated plea agreement). But time and again, when clients come to meet their attorney for the first time, they inevitably ask questions about – or even insist upon – going to trial.
In family law in particular, the idea of going to trial poses unique challenges, as the welfare of the children and the privacy of a family’s life becomes exposed to public view.
Forbes recently had an article on the public fascination with celebrity divorce, and one attorney commented, “With so much uncertainty surrounding the process, why would anyone ever want a judge to determine what is in the best interest of the family?”
This attorney echoes a point family law attorneys make all the time – when you negotiate and reach a settlement, you take the wild card off the table and you have greater control over the outcome. The two parties involved have lived a life together and will have to live with the consequences of a life apart; who knows better than the two parties how best to structure the life apart? A judge will give a fair hearing and follow the law, but the judge has only a tiny window into the world of any family, a window determined in large part by what each attorney brings to light in court. Because the statutes governing custody, support and division of property are flexible, judges have a great deal of discretion to decide any case in a great number of ways, most of which will leave at least one party feeling unsatisfied.
So we return to the question – why do people end up leaving their fate to the courts? Why take the risk? Usually, people go to court when they feel the settlement on the table too inadequate and they prefer to take their chances with the judge. For most people, the threat of going to court works as incentive to reach a settlement – to a point, until it feels like they have no other choice. For some, only having their day in court will make them feel justice was done, regardless of the outcome.
Sometimes court may be the best possible option under the circumstances, but that should be a decision reached with your attorney and based on facts and legal reasoning, not emotions and the mistaken belief that just by going to court you “get justice.” By going to court you get heard, and the evidence rarely leaves the judge with only one possible and obvious outcome.
Know when to hold ‘em, know when to fold ‘em – good advice for card players and people in divorce. While the threat of trial at a certain point in the process may help lead to a settlement, at a different point it may lead into too much uncertainty or even play against your interests.
If you have questions about going to court in divorce, contact us – we can help.