With the recent Coronavirus outbreak, your plans to pursue divorce litigation be temporarily on pause due to court closures. However, for many of you, you may be planning and preparing your case for when the courts re-open. Even if litigation is on the back-burner for the time being, you may feel certain this is the right choice for you and your family. I wanted to publish this article by my good friend Erin Levine, CEO of Hello Divorce on the Better Apart Blog so that as you wait for courts to re-open, you can consider some alternative options. Not only will these alternatives be a potentially better option for you and your family both financially and emotionally, but they may also help you expedite your resolution, as many of them are online services and thus can be offered during the court closures.
Written by Erin Levine
It’s not rocket science: protracted litigation is not a good thing, for anyone involved. Unless you like fighting, extended court battles and paying your lawyer exorbitant sums (or, if you’re a lawyer, profiting off your clients’ pain). The good news is, if you feel your issues are headed down the (legal) rabbit hole, there are things you can do to stop it, or at least slow it down significantly before court becomes the only option.
As the founder of Hello Divorce, I work every day to make divorce more understandable and more affordable so the process can work better, faster and easier for everyone. We know that information and transparency help neutralize conflict, so we are constantly working to help our clients understand all of their options. Sure, there are complex issues to work through in divorce and decisions can sometimes be painful. But our goal is always to resolve issues outside of court, through sound strategy and a commitment to helping our clients understand where they have leverage and how to use it, to the benefit of both parties.
But sometimes litigation feels necessary. If you’re leaning that way, I hope you’ll consider a few points:
Choose your battles and beware of the slippery slope.
You’ve consulted a lawyer and explained your case. You’ve tried to resolve things outside of court. You’ve considered alternate resolutions, from working with a mediator or going before a private judge. And you’ve done the math with your lawyer to decide whether the cost/benefit analysis justifies court intervention.
If you’ve done all of this and divorce litigation is your best option, work hard to try to keep it to just one or two issues. Because once you start going through the courts, it can become a slippery slope.
When you choose court, the easy part is strategy: choosing your approach and building your case. The harder part is complying with court rules and actual litigation. When a matter is set for trial, you can’t just waltz in on the day of your hearing to testify: there are rules you’ll need to comply with first, like attending a settlement conference, drafting a trial brief, exchanging evidence and witnesses, going through a formal exchange of documents (discovery).
If your lawyer is handling this, be prepared to spend thousands – often $20-100k. If you’re litigating on your own, you run the risk of losing not just on the substance but because of a procedural mistake. But guess what: lawyers aren’t perfect, either, and even an experienced lawyer can make mistakes.
So, my advice: do everything you can to resolve your issue(s) out of court. Divorce litigation raises the stakes so high, emotionally and financially.
What price are you willing to pay to “win?”
Unless you have unlimited time and unlimited finances, chances are, litigation just isn’t worth it for you, or your ex. Protracted litigation is – by definition – a long, drawn-out legal process. You’ll constantly be in a state of transition, worrying about the next hearing or the next court deadline. It’s impossible to move on to the next chapter with litigation hanging in the balance.
If you’re leaning toward divorce litigation, ask yourself these questions: How much time am I willing to spend on this? How much money am I willing to spend on this? What impact will this have on my kids/family/career?
Take your answers to those questions directly to your lawyer. It’s a good litmus test: if they aren’t confident your issues can be handled within the range of what you’re willing to put up with, it’s time to push harder for a way to resolve your issues out of court. And/or find a new lawyer who can help you do just that.
Remember: judges are human.
If you litigate, the judge assigned to your case will always be a bit of an x-factor. Judges are human. They have a tremendous amount of discretion when it comes to following court rules. And, most family law trials are not jury trials – which means you’re putting your fate in the hands of a single stranger, the judge, and not a jury of peers with varying perspectives and experiences. There’s a lot of uncertainty in appearing in court.
And finally, keep in mind that even if the judge rules in your favor, you have no control over the final ruling. Which means that you might get primary custody of your kids, but on a schedule that’s completely outside your ability to meet. Or you get permission to move with the kids, but you’ll have to pay for all of their transportation costs to and from visits with your ex.
So, once more for good measure: if you can solve your issues out of court and avoid divorce litigation, do it. Neither you nor your ex will ever get everything you want in a divorce; it’s the most complicated contract any of us will ever enter into, so it makes sense that unwinding your financial and emotional lives could get difficult. But the more control you (and your ex) can keep when it comes to making your own decisions about the way you want to live your lives in your next chapter, the better for everyone.
P.S. Want more tools and resources to stay positive during a divorce? Download my Free Divorce Survive & Thrive Kit below!
With support and strength,
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