January 01, 2016

The Settlement of Family Law Disputes Gets No Respect

Settlement allows wounds to heal, but many lawyers prepare for trial instead.

Craig E. Smith

Among the beatitudes in his Sermon on the Mount, Jesus says: “Blessed are the peacemakers, for they shall be called the children of God.” (Matthew 5:9 (King James ).) This is the praise that should be given to lawyers who settle their cases on a reasonable basis. Unfortunately, reality often is just the opposite.

Lawyers who recommend a sensible settlement may lose the esteem of their clients. They may risk being replaced by more “aggressive” lawyers. They may be viewed by their legal peers as weak and ineffective. They should assume that they will be generally overlooked and underrated by the law firms and legal communities where they practice. The reality is no glory and little praise for the settlement of cases or for those lawyers who achieve them.

And yet for many compelling reasons, family law cases should almost always be settled. Why? Restoring peace and stability to family members is one reason. Litigation, by its nature, is disruptive and destructive to the family and its members. Separation and divorce present difficult challenges to the parties and children, as old living arrangements end and new ones begin. Custody and access to the children must be resolved. Support issues such as alimony and child support must be addressed, as the income available for one household must now be stretched and apportioned between two. The division of marital property and retirement interests must be resolved. One or both parties may begin a relationship with a third person, an event that often creates animosity on the part of the other spouse.

As a result of these issues and others, there are often strong negative emotions generated by separation and divorce: anger, fear, sadness, and depression. Acrimonious words are often exchanged. Sadly, sometimes there is physical violence. Uncertainty prevails as the parties make demands (often unrealistic) and take adversarial positions. No one knows when or how the disputed issues will be resolved.

Litigation diverts attention away from productive efforts to proceed with the separation of the parties and the development of new living arrangements. Litigation creates uncertainty, with the wounds of the marital conflict still open and painful. Settlement allows wounds to heal. Settlement brings peace and stability for the family and its members or, at least, greater opportunity for family members to move on with their lives. This is the primary reason why settlements are good for the family members.

Premium Content For:
  • Litigation Section
Join - Now