The dissolution of your marriage is likely to be a trying event in your life. Over the years we have developed considerable insight into what factors and behaviors may reduce the stress associated with ending a marriage. As you begin the divorce process, we recommend that you keep in mind the following suggestions:
1. Emotional issues and grievances from the marriage rarely have a place in the courtroom. While personal and emotional turmoil from the marriage may play themselves out in the divorce, the courtroom is not the place to even the score or get your story across just for that purpose. The court is interested only in the legal actions for property division and child support, and doesn't care that your spouse won't listen or is unreasonable. We raise issues in court only when there is a purpose under the law for doing so. Bringing up emotional issues in court will complicate the case and raise your legal fees. It may be necessary to let your spouse play out his or her emotions before he or she will become reasonable, but in this case it is usually best if you simply "don't engage" over the issues.
2. Smaller issues should be settled out of court. They are not worth the increased legal fees, complications, risk, and acrimony associated with a court case.
3. Choose your battles carefully. It may be in your long-term best interest to give in on less important issues.
4. Carefully consider what your objectives are for your divorce. Your objectives should allow your family members to live their lives and should end the contest with your spouse. Recognize that your spouse will have his or her own objectives as well.
5. Recognize that divorce is a subjective area of the law. There are 13 statutory criteria for dissolution of marriage, and each one permits discretion on the part of the judge, the clients and attorneys, and others. Clients and attorneys are allowed to put their own spin on a case, but judges are allowed their bias on that spin. In addition, divorce involves extraordinary intangible losses, and requires that judges and attorneys evaluate potential losses and gains and make projections about the future. All of these unknowns result in subjectivity and approximation.
6. Remember that your children want to love both of their parents. Kids need to feel secure that their family relationships will continue, and that food, the house and the dog will still be there after the divorce. It is essential that you not communicate your own problems and issues to your children.
Contesting a Case in Court
1. It is time to take a case to court - to "hit back" - when the following criteria are present:
- The likely result of court, even given the risk present, is better than what you can negotiate out of court.
- You need court orders to stabilize an unstable situation.
- Court intervention will force attention and focus necessary resources on your situation. You need the court or "hitting back" to achieve a specific objective, to move case to a conclusion that you cannot achieve out of court.
2. Recognize that a court case is a roller coaster. If you cannot settle with your spouse and meet your objectives and find you have chosen to begin a court contest, remember that it will be a roller coaster. Sometimes you will feel you are rolling high, other times that you are losing and are bottomed out. A trial is emotional, stressful, scary, and anger-producing. You will need to let the pendulum swing both ways. Sometimes it is a waiting game.
3. We recommend that clients go to court and observe how cases are processed and decisions are made before their own trial. Court contests mean financial and emotional expense and risk. There are always surprises no matter how prepared you are, and we cannot predict with accuracy how another person (the judge or family relations officer) will view the facts or decide the issues. You will have a better sense of this if you observe someone else's court case.
4. Trials are expensive. They require significant preparation and lead time. We cannot wait until the last minute to decide to take a case to court or to begin preparing for a trial hoping to avoid expense. Doing so will lead both client and lawyer down the road of false impression that the cost is not real.
5. It is essential to recognize that a trial involves significant risk and chance. In a case where reasonable people could go either way on the facts presented, there is considerable risk that things may not turn out the way you would like. No amount of preparation will change this fact.
6. When preparing a court case, we must independently verify the facts. Otherwise, you will be hurt in court.