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When You Can’t Avoid a Trial

Guest article by Diana Mercer, Esquire

If you know your settlement goals and priorities, you’ve had a thorough conversation with your lawyer about the range of settlement, and you’ve done some soul searching yet you simply can’t live with the most recent offers that are on the table, then a trial is your remaining option.

The good news is that few cases come to that point. About 95% of all divorce cases settle before you get to trial.  But it happens, and it’s serious business.  It’s time consuming, nerve-wracking, and incredibly expensive.  Back when I was a litigation attorney, I enjoyed going to trial because it gave me a chance to practice what I was trained to do in law school.  But I rarely encouraged clients to go to trial because even a mediocre settlement would likely net them more than a great judgment after a trial, taking into account the litigation costs, time away from work, and wear and tear on their soul.

Inappropriate or non-existent settlement offers are legitimate reasons to try your case. But be sure that’s really what you’re haggling over, and that these issues aren’t just red herrings.  If you want to go to trial to prove a point, to tell your story, or to seek justice or revenge on your spouse you’re going to be very disappointed.  Backlogged courts don’t have time for lengthy testimony, and as dramatic as your story may be to you, it’s much too similar to thousands of other divorce stories for many judges to sit up and take notice.

So understand your motivations.  Your lawyer is worried about your legal case, asset division, securing support for you, and your parenting plan if you have children.  As the client, however you may be feeling a great deal of stress, grief, loss and anger over the situation and it’s hard to think about your settlement in such nuts and bolts terms.  Conflict between you and your lawyer may happen while you’re processing the emotional divorce while the lawyer views this essentially as a business deal.

While for the divorcing spouses a trial is both an economic and psychological decision, understand that judges are mostly concerned with providing a reasonably fair allocation of income and assets based on the laws of your state. They are not concerned with unraveling every transaction between you and your spouse. Fault issues like endless arguments and hurtful words may be at the forefront of your mind, but will probably seem minor to the judge.  After all, you’re the 30th case he or she has seen today alone.

Don’t make the decision to try your case on moral grounds alone. This is essentially a business transaction, even if it doesn’t feel that way, and you need to decide how you can finalize your case in the least expensive (both in terms of money and wear and tear on you) way possible.  Don’t let your emotions get in the way of a good, solid business decision.

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2 Responses to “When You Can’t Avoid a Trial”

  1. Diana Mercer Says:

    Thanks for posting my guest blog! As a mediator, I know how hard it is for people to separate their emotions from their legal case–it’s only natural, after all, because it’s your family and everything you care about. But trials rarely benefitted anyone except my office’s 401(k) plan.

  2. California Family Law Mediation Los Angles Says:

    Divorce litigation over property, parental rights, and pride destroys families. The cost of court is high both financially and emotionally.

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