TRY YOUR CASE OR SETTLE IT — HOW IS THIS DECISION MADE?
When your divorce case has passed the early stages and progresses to a point where you are deciding whether to go to trial or negotiate an out of court settlement, you have more information than you had at the start of your case. That information may help you decide whether to proceed to trial or negotiate a settlement, but it’s not the only factor. Here you are in one of the most stressful periods of your life (as a stress factor, divorce is second only to the death of a spouse), trying to make a decision in a vortex of legal, emotional and economic components. How do you move forward?
Generally speaking, settlement reduces conflict, stress and expense. In settlement negotiations you control what you agree to and do not agree to. But settlement is not always possible and, if you can do better in court, may not be desirable.
Your lawyer will be a huge help in evaluating your case. An experienced divorce lawyer will be able to do more than just hazard a guess as to whether you’ll have a better outcome in or out of court. Review with your lawyer the factual information developed during the case to assess its merits. Your lawyer will help you understand what can and cannot be proved as fact at trial. Evidentiary rules such as hearsay (a witness cannot testify to something said by another) and the availability of witnesses to testify can limit the information a judge is allowed to consider. The credibility of particular witnesses can affect the probative value of their statements. And of course there’s risk: you do not control the outcomes at trial; the judge does. If trial is looking like a slam dunk, your lawyer can help you answer this question: what if you lose?
Legal analysis is not the only issue. In the decision whether to try your case or settle it, emotions are no small factor. If you lean toward trial, ask yourself why. If your motivation is retribution, redemption, satisfaction or other emotional reasons, acknowledge the emotions — they are your feelings and totally legitimate — then consider the costs and benefits of vindicating them in court. Especially if you have children, ask yourself what your post-trial relationship with your spouse is likely to be. Consider that although you will be a two-house family, you will always be a family, and the two of you will be co-parenting your children together.
Consider also your relationship with your children. If you believe your children will be better off with you than with your divorced spouse, weigh that against the impact of your choice on them. Is a co-parenting plan that you and your spouse agree to in settlement negotiations likely to accommodate their interests better than a judge’s unilateral decision, even though the court is mandated to focus on the children’s best interests? However well-intentioned a judge may be, you know your children better than s/he.
As you size up your case and look into your heart, you may need to look at your checkbook as well. In some divorces, finances play a part in the decision whether to settle or try the case. For lawyers and clients alike, trials are expensive to prepare for and attend. Settlement conferences are generally less costly. Of the small percentage (2-5%) of divorce cases that do go to trial, most are settled during trial. From an economic perspective, trial preparation is to be undertaken only if you truly intend to try the case, or need the leverage of the courtroom to bring your spouse to the negotiating table.
Ultimately it’s your decision. Experienced counsel such as the attorneys at Lazar & Schwartz can help you decide, but at the end of the day, you’re the client and the choice is yours.
