Wondering Whether to Settle or Go to Trial?
Not all divorces are adversarial, and not all settlements come from long and drawn-out court battles. While there are times when it seems next to impossible, you and your spouse should be open to brainstorming. If you're at an impasse or seem to be deadlocked, consider flipping a coin because when two parties have only a 50-50 chance of "winning," it typically revives the interest in negotiating.
Once discovery is complete, the parties are usually at a point where they must determine whether they want to attempt to resolve the contested issues between them or take the matter to trial.
In most cases, the parties have already had their Pretrial Conference. Here, the attorneys explain to the judge what the case is about, clarify areas where the parties can agree, and identify those areas where the parties disagree. The judge will attempt to assist the parties in reaching an agreement. While the judge would not force you to settle, the message becomes very clear. In so many words, the judge says, "Look parties, I'm your judge. As it appears to me, this is what the legal issues are. Unless you can show me otherwise, I see it this way, and I would likely be inclined to rule as follows…"
Remember, judges are people. They wear a robe, they have the power to change our lives and we may not like it. If you don't like not being in control, try and work things out yourself.
Successful Negotiation Strategies
Sitting down at a bargaining table seems like risky business. When there are significant inequities (one spouse is more financially savvy, one spouse controls certain business assets, etc.), you must do whatever you can to change the expected patterns of your position. If you can avoid succumbing to predictable old ways, you will be able to balance the pressures against you by using strategies that are different from those expected from you.
Whatever the obstacles, the basic rule is to understand what options exist for both of you. Insist upon realistic objectives. Focus on the problems, not the person. Try a different approach to the same problem; reframing a seemingly insoluble problem may solve it. Be ready to trade. Say that you want the house and your husband wants all of his retirement. Decide which one you want most, and if the values are close enough (not necessarily exact) make the trade. Leave heated issues for last. If you start off discussing sore points, you'll get nowhere with the rest of the issues. Always remember, if things get too tense, you can ask for a time out.
An early step in predicting what your negotiation will be like is to try to recognize the tactics being used. In an adversarial situation, your spouse may try to wear you down by misrepresenting facts, providing less-than-full disclosure, making personal attacks, withholding money or children, escalating demands, or playing on your sense of guilt.
If a settlement offer is accepted, a detailed Separation Agreement is prepared.
This document essentially indicates which assets and liabilities will be allocated to each party. It will also address the issues of custody and visitation – or the parenting plan – together with support and all other matters. Once this settlement agreement is signed by both parties and their attorneys, it is filed with the court in the form of a binding court order.
If your case isn't settled, it goes to trial before a judge. This method of resolving your dispute is the most expensive, and you have the least control. The judge decides, and that's it. At the conclusion of the evidence, the court will likely take the case "under advisement," which means the judge considers all the issues and writes an opinion and judgment to be sent to each party months following the trial.
Points to Consider
- You might lose. Half the people who go to divorce court lose. There's always a winner and a loser. And, even if you win, you'll lose because legal fees and the damage that a trial can cause never end.
- Divorce Court is expensive. Going to court involves enormous expense, time and uncertainty. You have to take time off of work. Law firms and expert witnesses can cost upwards of $10,000. At the end of the day, you're spending your children's college education.
- Decisions end-up being made by a complete stranger. Judges are strangers to your life and marriage, and they are called upon to make life-lasting decisions after hearing only a few hours of testimony about a marriage that may have lasted for years.
- Judges are only human and they make mistakes. We pay them to make decisions, and resolve disputes, not to be all knowing. Sometimes they make the wrong decisions. Do not think because you are right, that you will win. And, when a judge makes a mistake in your case you often have no legal recourse against that judge.
Our Winning Formula and Unique Strategy
Since our attorneys are assigned to a specific region and set of courthouses, we know how policies and procedures are handled in each courtroom, and you can count on the fact that we know how each judge tends to work.
Instead of being dependent on a single attorney, you get an entire team backed by our statewide network of carefully recruited family law attorneys working together to watch your back, stand-up to your spouse, and prevail in the courtroom. When you become a client, our entire team is available to you at a moment's notice – 7 days a week, 24 hours a day. Each of our attorneys is available on Blackberries and are available to answer your questions by phone or e-mail anytime - not just during office hours!
When you are involved in matters relating to settlement or going to trial, your chief concern is getting your fair share of the marital estate and protecting your children. The aggressive and experienced family law attorneys at The Massachusetts Family Law Group do everything possible to achieve the best possible outcome the first time around, because appeals are rarely won. For a FREE, no-obligation consultation, call (800) 763-1030 or e-mail us.
