The Reality of Having Your Day in Court: Why Settlement May Be a Win

The Myth of the Hard-Fought Litigation Victory

You hire an aggressive lawyer who will fight hard and charges you a bit more than you are comfortable with; the judge is fair, experienced, and will see through your ex’s lies; and, after some heated, dramatic arguments in court, you will obtain the orders you want, and force them to act fairly in the future.

Why Do Some People Subscribe to This Myth?

The cultural ideal of a courtroom drama is wildly misleading. Television courtroom scenes are fictional. Courtroom dramas typically show a clear “winner” and “loser.” In most divorce cases, there is no winner, and both sides leave the courtroom unhappy with the outcome in some way—divorce is really emotional. In order to take the high road requires an enormous amount of emotional strength. You will likely be required to compromise on issues that are important to you, or that you are in the right about. People often want public confirmation that their ex is the “bad guy.” Although it can seem like vindication to prove in court that your former spouse cheated on you, it will have very little impact on your divorce in most situations.

What Is Wrong with This Myth, and Why Should You Resist the Temptation to Have “Your Day in Court”?

Lawyers are paid by the hour and make more money by going to court and continuing the fight—for as long as you can pay for it. The “pit bull” style attorneys do not discourage you from taking unreasonable positions because the more untenable your position is, the more money they make. Even if your lawyer is settlement oriented, your former spouse may choose a lawyer that intentionally prolongs litigation.

Judicial officers are overworked and understaffed and work in a harsh environment. Court documents are lost; parties can be unruly; and courtrooms are packed with litigants, interpreters, witnesses, and others who need managing. The judges have bad days or may be newly appointed and inexperienced. Regardless, judges rarely, if ever, have sufficient time to consider the details of your case. They are strangers to you and your children.

The court orders may come as a surprise to you, your lawyers, and your ex, and nothing feels like a fair outcome after all. You have lost all control over the outcome of decisions affecting your daily life and financial well-being.

If some of the court orders are advantageous to you, your former spouse does not follow the order and you need to return to court to seek enforcement, further increasing the size of your legal bills.

Don’t Think This Story Is True? Go to a Courtroom and See for Yourself!

Oftentimes, I invite my clients to attend court hearings, or to spend an entire day at the courthouse, in order to gain the important realization that hearings at the largest family law courtroom in the world here in Los Angeles are nothing like what they may expect or what they have seen on TV. As the captain of a British Airways long-haul flight once told me, the pilots experience hours upon hours of dull moments in the cockpit, punctuated by moments of sheer terror. Clients rarely, if ever, enjoy waiting around for court hearings to begin while paying their lawyers by the minute. Hearings are postponed, courtrooms are overcrowded, paperwork gets lost, and judges face overwhelming caseloads and staffing shortages. You may only have a few minutes to explain your life to the judge on a busy day. I once overheard an angry client address her counsel as they left the courtroom, “What the heck just happened?” Her lawyer’s reply was simple: We won. The client took an incredulous gasp! There is nothing truly gratifying about having your day in court, even when “winning,” but sometimes you need to experience your day in court to truly gain an understanding of how frustrating it can be.

What Should I Do Instead?

The Mediation Process Is Not for Everyone—but an Amicable Resolution Is

Traditional mediation sessions consist of a neutral mediator (usually a lawyer or retired judicial officer) and the two spouses meeting together to discuss settlement of financial, custody, and support issues. After 35 years practicing law, I have found that there are at least three situations in which the traditional mediation process is not appropriate: (1) ongoing domestic violence or a serious power imbalance in the relationship, (2) untreated substance abuse, and (3) refusal to adequately disclose financial information. In these situations, it is impossible to reach a fair settlement agreement that will be enforceable. It is too risky to sign an agreement with the prospects of a court later setting that agreement aside due to lack of mental capacity, duress, or an unfair division of the assets, to name a few examples. However, even if you cannot participate in a traditional mediation setting, there remain myriad reasons to resolve your divorce case—without going to court.

Your Spouse May Not Be Agreeable to Mediation

In that case, you have no choice but to proceed with your divorce in the court system. However, you can still move forward amicably without a mediator involved to reach a final resolution on all issues including property division, custody, and support.

Practical Tips on How to Resolve Your Case without a Mediator

Hire a Lawyer Who Cares about You and Your Family, Not a “Pit Bull” to Punish Your Spouse

A compassionate legal team will encourage you to take care of your physical and mental well-being in preparation for the divorce process. Getting adequate sleep, exercising, and seeking mental health care are vitally important as one anticipates making important life decisions regarding the well-being of your children, beloved pets, and finances. Hiring a lawyer who prioritizes your well-being and listens to your needs will serve you better than a “shark” who will make more money assisting you in seeking revenge. Avoid the emotional toll of litigation and find a tenacious, “velvet hammer” to help you navigate through intense emotions, rather than escalate fees to line their own pocketbooks. In addition, a caring attorney will be able to provide you with names of licensed, experienced mental health care providers who specialize in divorce. Thinking clearly while under stress is imperative.

Outside Experts Are Worth the Investment

Your legal team will be well-versed in the retention of outside experts to assist you. Lawyers who prepare clients for settlement will have a Rolodex full of referral sources to share with you, as needed. Family law issues touch upon every aspect of your life, from taxes to custody, property division to retirement, business valuation to visitation schedules, and so on. For example, if your lawyer recommends the services of a forensic accountant, a child therapist, or a real estate appraiser to assist you during the divorce, it may be necessary to utilize their services before you can reach an equitable resolution. Recognizing the strengths that outside experts bring to assist you in a broad range of areas will be worth the investment.

Education Is an Essential Step in the Settlement Process

In order to reach an intelligent, informed decision, you must attain a reasonable understanding of the divorce process and the underlying laws—whether in support of or against your interests. You will need to know the reasonably predicted likelihood of a favorable or adverse outcome if you end up in a courtroom. Experienced trial counsel will have many examples of potential outcomes—the good, the bad, and the ugly. Those possible scenarios should be carefully explained to anyone who is convinced that having their “day in court” is a good alternative to reaching a settlement on their own terms. If you are well-versed in the underlying law and facts that support your position, unfavorable outcomes can be averted by reaching a settlement.

Take Your Time, and Weigh Your Options

Ask your lawyer about potential outcomes, taking into consideration your family’s financial future and the emotional toll “going to court” will take on your life. The best, battle-tested litigation attorneys resolve 99 percent of their entire caseload without judicial intervention to the mantra: Settle, Settle, Settle.

A Divorce Settlement Will Help You Reach Closure and Achieve Relative Peace

When someone is going through a divorce, this exercise takes some active imagination! Those clients who were able to reach a deal have moved on, leading productive, healthy, and even happy lives, thereby benefiting their children. I use the example of being invited to a former mediation client’s wedding to watch their daughter walk down the aisle as the ex-spouses join the wedding party, sitting near one another, and joining in a toast to the bride and groom. I hear from former clients about graduations that were not ruined by feuding parents, and birthday parties where both sets of grandparents were invited. Once, a father in a high-conflict custody dispute was seeking sole physical custody; he admitted that his spouse was a good mother, but because of his anger toward her, he wanted full custody of their daughter. I asked if he would rather watch his daughter walk down the aisle and be grateful for her parents or risk not being invited to the wedding at all? In the middle of a battle, clients rarely have the perspective needed to realize that settlement now will bring peace in their future. The moments that matter are those in your future family’s lives, and if you choose to seek closure by reaching an amicable resolution of your divorce, you will be able to live at peace because you took the high road.

Agreed-upon Orders Are More Likely to Be Followed

Sometimes, decisions or orders made by a judicial officer in court proceedings are followed by the parties. At other times, however, parties must seek enforcement of court orders when child support is not paid, visitation schedules are not followed, or equalization payments go unpaid. In the ways the judgment was advantageous to you, your ex doesn’t follow it and you need to go back to court, further increasing the size of the bill. Post-judgment proceedings clog the court’s calendar, and the docket is filled with contempt proceedings. Having a judge issue an order is no guarantee of payment or that the orders will be followed. The costs of seeking enforcement by going to court, serving papers, calling the police, and paying attorney fees will almost always outweigh the benefit of litigation.

Even if the parties experience “buyer’s remorse” after the deal is signed, most former spouses honor the terms of their agreement. In fact, once one or more provisions of a deal are reached, momentum is gained and builds upon itself; the remaining terms often fall into place—often referred to as the snowball effect. This momentum can be carried forward into a future in which parties become more flexible in reaching future agreements as their family’s needs change over time. On a handful of occasions, I have checked in with former mediation clients to find that they have purchased homes on the same block, allowing the children to roam freely between the two and join each other for holidays. Having resolved their divorce amicably in the first place allowed them to reach further agreements, adjusting their schedules in the future and adding flexibility to the parenting plan that was tailor-made to the parents and children’s needs.

Do Not Rush into a Final Settlement

During the initial consultation, potential clients will often state that they already have a deal and they just need someone to make it official for them, a scribe if you will. After I congratulate them on reaching an agreement (if nothing else but to seek out a mediator), I ask a few questions, such as do they both have equal access to financial information and have they agreed upon valuations of various assets. Have they considered the tax impact of selling, dividing, or retaining certain assets? Rarely is a couple well-versed regarding the financial implications of their proposed settlement plan. Until the parties’ assets and debts are identified; characterized as separate property, community property, or quasi-community; and valued can the conversation begin as to how to divide the community estate equitably, keeping tax implications in mind. Take the time to verify numbers, and consider whether payments can be secured with assets and/or insurance. Even the most financially sophisticated clients are not well-versed in the implications of tax, family law, or available provisions of an agreed-upon judgment. Good family law specialists will share their experience and expertise during the settlement process to help you achieve the best possible outcome.

The irony of a divorce “settlement” is inescapable. Divorcing parties are encouraged to agree on major life decisions when they cannot agree to stay married, or anything else—from where to send Junior to kindergarten or who keeps the family residence. However, if estranged spouses can manage to overcome roadblocks to settlement and build a new relationship with a former spouse, they will achieve closure and some measure of peace, knowing they have reached a compromise.