ABOUT THE PROCESS

Why do so many people leave the divorce or family law process feeling even worse off then they were before?

Dissatisfaction with the divorce and family court process often comes from the failure of attorneys to explain and assure that the client has clarity about their case, their expectations, and the realities of the process. A client’s lack of knowledge of their attorneys work and the process, and the failure of the attorney to be sure that the client does not have any unrealistic or unstated expectations for their settlements or judgments is often at the root of so many peoples feelings of dissatisfaction with the process. 

It is important to understand that many times there are no true winners in these matters, resolution is almost always more productive when it is possible.  Court is not a place to exercise your anger or to expect to punish another.

Court decisions on these matters often do not satisfy either side and may harm or deny both sides what they want.  Fairness is a very subjective thing when applied over cases with great subject diversity without any understanding of the interplay between the parties or any interest in the long-term success of the parties and their children (if there are any).  In addition, the court gives little if any thought to how their orders can build or reduce the parties’ ability to co-parent after the divorce.

Divorce can become a tedious, stressful, emotionally exhausting, and financially demanding endeavor.  A divorce trial can do additional damage to already strained relationships.  As a result, the stress, money lost, time wasted, uncertain outcomes, and risk of loss demand that prudent attorneys always make every effort to reach a reasonable settlement, that they not waste their time and money on time wasting actions.

Cons of Divorce Litigation:

1. •    There is no guarantee of a successful outcome.
   

•     Sometimes the other party is so unreasonable that they compel you to litigate things that you would settle, and makes litigation an expense that you cannot avoid (unless you are willing to capitulate to their unreasonable demands). 

•     People who force their cases to trial often express a much lower level of satisfaction with the results than couples who make every effort to understand their rights, work to reduce acrimony, and to fairly settle out of court.

•     When a judge or jury decides your case you give your control away to a third party.

•     Trials are expensive and most of your money spent on lawyers, professional evaluations, witnesses, court costs, etc.

•     Divorce trials can take up time, dragging out the divorce leaving you waiting months or years for closure.

•     Dates for trials can be scheduled in non-sequential days, which frequently causes the judge to suffer with  memory loss over the previous presentation.  Judges have been known to even forget things they decided such as denying or allowing admissions of evidence.  This also results in greater stress, expenses, and inconvenience for you.

•     Your fate (and your family’s) is left in the hands of a stranger or many strangers.

•     The judge assigned to your case may have biases and prejudices, they may be tired, they may not be listening carefully, and all sorts of factors effecting the judges ability to judge, may be working against you.

•     Courtrooms are public forums and transcripts, court documents and filings are all public records.  Thus, the confidentiality of your case and your testimony is not secure. Anybody including court personnel can profit off of sharing your private information, and may take action such as reporting you to the IRS.

•     Trials can further strain your relationship with your former partner, and when you become adversaries rather than allies you make it harder on your children and potentially pollute your ability to work together for their best interests throughout the process and within co-parenting situations.

•     Cross-examinations and depositions are often stressful, brutal, grueling, and extremely intrusive.

Pros of a Divorce Trial:

•     If you are unable to communicate with or reach a decision with your spouse, a judge or jury will do it for you.

•     Once a decision is reached by judge or jury it will become a legally enforceable judgment.

•     If the law is clearly on your side in your case, the judge or jury should rule in your favor; the odds are with you.

•     Ongoing relations with a former spouse could potentially be less strained if the ruling is made by a third party.

•     If after the decision you feel the law was misapplied, you may appeal to set aside the judge’s decision.

•     In instances where the other side is being unreasonable, you may be awarded more than if you had accepted your husband or wife’s offer or if they had accepted yours.  In extreme cases,  the court may order the reimbursement of some or all of your attorney fees.

Divorce and family law actions cause enormous stress on everyone involved.  This stress most often stems from the respective fears and residual anger of the parties.  People in family law matters express fear of the process, of being alone, of being a single parent, of returning to work, of changing jobs, of losing, or of losing the respect or relationship with your partner, family, friends and/or children.  They also express fear for their long-term financial future.  All of these fears are extremely destructive to both the person, and to the process, especially if lack of knowledge, fear, and/or anger clouds your judgment.

Fear and anger affects the success of many settlements because it prevents people from moving forward to reasonably reach the best and most equitable resolution.  Fear and anger compel many people to view divorce, child custody, or many other family law actions as a means to punish the other side, or to prove who was at fault for the failure of the marriage, and this is a costly mistake.

If you decide to go through with a divorce trial, you must understand and be prepared for the process. Our court’s and court systems are over-burdened with judges who cannot balance the demands of the system with the need for them to do a judicious and careful job with divorces, especially those which require their time to handle the delicate and important job of planning a successful custody and visitation order.  Many, by their flaws, nature and prejudices act in a manner than is less than judicial, and take on an attitude and make decisions which scream that they are disinterested, do not care, and that they are not paying proper attention to the specifics of your case, and the needs of your situation. 

Often there is no creativity in the orders, and reason flies out the window, leaving everyone stuck with boiler plate orders that may feel like punishment for taking the courts time.  Many mediators and judges are overburdened by your presence, and unfortunately they may take their frustrations out on you and your case by giving you  rote responses and orders that do not work for your situation.  The court has little time, and no real thought to give to your matter.  Most people making the decisions are ill equipped to truly resolve matters in a way that will reduce acrimony and blame, even if they had the time to do so.

Almost every case deserves at least an hour of Court consideration: however when the Court has 32 cases a day on calendar, it is impossible to give any one adequate attention, which is one of the many good reasons to have an attorney that has explained the process to you and prepared you to take your best shot at getting a  truly positive result.

To assure the proper presentation of your case, you must have a zealous advocate who is familiar with the law, and the courtroom, and sometimes an expert or experts (for example Forensic Accountant, Psychologist, Real or Personal Property appraiser).  Without the guidance of an attorney, who knows the process and can coordinate the evidence and the experts that the presentation of your case may require, you risk becoming another faceless person before a court that determines the future for you, your children, income, assets and/or property.

When there is any chance of resolving your divorce or family law matter without going to trial, you should try to make a reasonable settlement.  You will save money, time, and relieve incredible stress.  If you have tried everything and you cannot reach a settlement, the court system may be your only option.

If you're considering divorce or family law action and are anywhere within the process carefully consider every possibility for settlement of all or at least as many matters as possible.  Reaching agreements on the issues, on your own with a lawyer's assistance should always be considered.  Always keep in mind, as soon your case is over, you are free to move on and you may happily begin the healing process.

To avoid dissatisfaction and/or misunderstanding your rights, and/or the legal process you must seek legal advice that takes a collaborative, integrated approach, and that addresses your needs and that attempts to achieve settlement and maintains an open door for settlement through the trial and other proceedings.

Divorce attorney David Lee Moore provides cost effective coaching, limited scope, and full service representation for any family law, child custody, and child and spousal matters.

Please call my office for an in office, or phone consultation, 805.643.1671 or 805.746.4586, or use the questions/appointments form to request to arrange an appointment. Phone and e-mail consultations require pre-payment.