I once had it a conversation with a “gang-banger”. He told me about a fight between two rival gangs. Foolishly, I made the mistake of asking him who won the fight. He got a strange look on his face and said “nobody wins a fight. It’s just a question of who loses the most.”
There is a lot of logic to the gang-banger’s philosophy. There’s never been a fight where one side is completely unharmed and the other side is totally battered and bruised. There’s going to be injuries on both sides.
The same can be said for a divorce trial. Each party is going to pay thousands of dollars to his or her attorney to litigate a contested divorce case. But the court never awards all the assets to one party and all of the debts to the other. No one is going to get everything they want. It’s just a matter of who loses the most.
Theoretically, the court could order the other side to pay your fees. It is extremely rare, however, for anyone to recover all of their fees. At the end of the day, almost everyone pays out a significant amount of money and still fails to get everything they want. It is not a stretch to say that in most cases, the lawyers are the only ones truly happy in a contested divorce action.
And the losses may not be limited to money. When children are caught in the middle of a custody battle, they may suffer for years afterwards. In most cases both parents will be awarded significant time with the children. By necessity, the parents will have to communicate with each other for years. The custody battle, however, almost always intensifies the animosity between the parents. After a bitter custody fight, the children may be caught in the middle of an ongoing war for years.
The fact that both parties will suffer losses in a contested divorce case is only one of the problems. The plain truth of the matter is that the court system is not an efficient way to resolve many family issues. No matter how good your attorney may be, there are certain realities that cannot be avoided:
- The judge has hundreds of cases on his or her calendar and, therefore, the parties get very little time to present their evidence. In most cases, the parties get only three hours for the entire trial. From that, you must subtract restroom breaks, arguments by counsel regarding the admissibility of evidence and any number of other legal issues, and other interruptions. Typically, each side must present the entire case within about an hour, even though the case may involve complex financial issues, custody and parenting time, and support issues. There simply is very little time to present very much evidence.
- Many family law issues do not have simple answers. Who gets custody? It’s not like a breach of contract case where the judge can look up cases on how the contract should be interpreted. Custody is determined by the nebulous standard of “the best interest of the child.” That standard is hard to define. It basically differs from judge to judge. Thus, while judges must make decisions on difficult issues, there is little time to present evidence and very little standardization in how the issues are decided.
- Even though the judges can have widely differing views on family law issues, they have a great deal of discretion in how to rule. This makes it difficult to appeal a decision with which you disagree. As a result, two cases with similar facts may have significantly different outcomes. It is difficult to predict how a judge will rule under the facts of your case until after you go through the trial.
- The court rarely is going to be as invested in your issues as you would like. Issues such as child custody, spousal maintenance and ownership of business interests can have a significant impact on your life. The court, however, has limited time for each case. The nuances of the case can get lost. While such nuances may be vitally important to you, the court has to spread its time on thousands of parties. It is not unusual for people to feel discounted by the process.
So the question becomes, do you want your future to be decided by the court, or do you want to be take control of your life? Most people realize the advantage to entering a settlement agreement to resolve their family law issues amicably. Such agreements save time and money, reduce the conflict between the parties, and let the parties move on with their lives.
Of more importance, in an agreement, the parties can address the specific issues in their case in as much detail as they need. Everyone’s life is unique. The court, however, tends to treat everyone in a similar manner. Practically speaking, the court lacks the time to get too detailed. But when parties take control of their lives, they can provide unique features that addressed their specific issues.
Of course, you cannot force your spouse to be reasonable. Some people just want to fight. They have some ridiculous idea that the judge is going to say they were right about everything, when in fact, the Court most likely merely wants to make a ruling and move on to the next case. You may be forced to fight. But it may be advantageous to speak to your spouse about a compromise and the advantages of resolving the issues amicably. After all, even “gang-bangers” know that when the dust settles, no one wins a fight. It is just a matter of who loses the most.