In our experience, most clients, even those who initially come into our office determined to wreak havoc in the ex’s life, ultimately settle down and come to recognize that settling the case is far preferable to a living through a trial. But some clients have to take a long, hard look at themselves and their situation before they reach that acceptance of this change in their lives. A certain amount of clarity and level-headedness will go a long way toward getting you through to the other side of your divorce.
A lot of factors determine how well you, or your attorney on your behalf, can negotiate for the most satisfactory result in your case. Sometimes there are obstacles to the best possible outcome for you that are things you can affect only a little bit or not at all. Perhaps you cannot make an impact on your spouse’s totally unreasonable personality, for example. But some factors that determine how good a result you will get are things over which you have at least some control. Paying special attention to factors you can have impact on will almost certainly make a difference in whether you come out of your separation sorely wounded, or relatively less injured, emotionally and financially.
Several things that greatly influence the outcome in every divorce case are also things that most people can influence but many people nevertheless overlook, namely: (1) how much each side understands about the substance of the law of property distribution, custody and support; (2) how much information each side has access to; (3) the extent to which each side can treat separation and divorce as a business transaction, as opposed to a continuation of the personality conflicts that resulted in the separation in the first place; and (4) how skillful each side is in negotiations.
If you and your spouse both understand what would probably happen if your case were to be decided by a judge, you will both more likely be able to agree about property distribution, custody and support. The standards used by a judge for deciding custody, support and property issues is the legislative, public definition of what is fair and equitable. To an extent, these detailed, highly evolved and often complicated legal standards allow lawyers to make generally accurate predictions about possible trial outcomes. This is why it matters that each side understands the substance of the law. Each side will measure its own position on custody, support and property according to a prediction of what a judge would most likely do. Only a fool will hold out for a position that is absolutely unobtainable in the courtroom setting.
Similarly, your negotiations will go far more smoothly (and inexpensively, if a lawyer is assisting you) if you can negotiate matter-of-factly, without letting personal issues intrude and sidetrack or distract you. This is why it matters that you resist the temptation to replay your personal animosities with your spouse over every point that comes up as you try to settle the issues arising from your separation.
Although it is unlikely that you will end up in court in a contested divorce, the shadow of a court proceeding looms over almost all divorce negotiations. It is therefore important to have some insight into what will happen if your case actually goes to trial. Bear in mind that you and your spouse can choose to settle at any point in this process; we have had many cases settle at the eleventh hour, sometimes even a mere hour or two before the trial was due to begin.
In most of our cases, it is difficult to define exactly where the early information-gathering process merges with the negotiation process, and where both of those processes turn into trial preparation. There’s a great deal of overlap. But in general, there are a number of steps involved in preparing for a trial.
First of all, you and your attorney will go through discovery, as will your spouse and his or her attorney. Discovery is the information-exchanging process of a legal proceeding. In other words, it’s the stage at which your attorney is finding out every relevant detail about you, your spouse, and your situation. Some of this will be in the form of documents that you will gather, some will be affidavits submitted by you or your spouse, and some will come in a more structured format, including interrogatories and depositions.
Interrogatories are the written questions served by the opposing party that must be answered in writing as part of the discovery process. You will both be expected to fill out a set of interrogatories, answering the questions completely and truthfully. These can be considered evidence by the judge, so take them seriously. Depositions are the verbal, face-to-face part of discovery—the opposing party counsel asks you questions with your attorney present. Like interrogatories, depositions are considered legal evidence, so you will have to swear not to perjure yourself, just as you would in court. Depositions can also be pretty grueling; both attorneys are trying to get as much information (potentially damning information) as they can, so consider the deposition to be a small taste of what the trial itself will be like.
During the trial, your attorney will have the opportunity to present the testimony of expert witnesses, where applicable. For instance, if you are claiming that your spouse is mentally unstable and therefore shouldn’t have custody of your children, your attorney will arrange for one or more mental health experts to testify regarding their examinations of your spouse. Similarly, the housing or business appraisers that we discussed in our article Divorce and Finance may be called upon to offer evidence in an equitable distribution trial.
Remember, also, that non-expert witnesses are also likely to be called, and consider the toll this may take on the people in your life, and your relationships with them. In particular, if you are fighting over custody arrangements, will your children themselves be called upon to testify? Attorneys and judges usually try pretty hard not to involve children in legal proceedings, assuming that the experience of being questioned in a courtroom would be too traumatic for most kids, but it can happen. Other people who have a regular role in your life are also fair game: teachers, pastors, neighbors, business associates, and relatives can all be required to appear in court. Bear this in mind as you are debating whether or not to settle before you reach the litigation stage.
The trial itself will take place, obviously, in a courtroom, with a judge presiding. The judge’s role is particularly significant in a divorce proceeding, because if they go to court, divorce cases are decided by judges, not juries. It is therefore useful, at this point, to briefly consider the judge’s role in your case.
You generally will not have any say in which judge hears your case. This creates uncertainty, which should give you and your spouse further incentive to settle without going to court. Furthermore, judges in different parts of a state may interpret the laws differently. You can’t be quite sure how any given judge will perceive the evidence presented.
Part of what you pay a lawyer for is his or her knowledge of what judges will do. Be careful, though, about relying too heavily on the opinion of one expert. Judges are often not as predictable as lawyer would like. A judge’s decision in a divorce case is usually final; appeals are possible but they are limited and costly.
Judges generally seem to prefer to reach their decisions in private; most will take major issues under advisement, meaning that they’ll think about it and let your attorney know when they’ve made a decision. Most rulings are verbal; you’ll either return to court to hear what the judge has to say, or, more likely, the judge will call your attorney to give his or her pronouncement. The two attorneys (yours and your spouse’s) will then draft the appropriate paperwork, based on the judge’s decree, and the two of you, as well as the judge, will sign off on it. The resulting document is a court order, and remains in effect until a judge decides otherwise. Any changes you want to make down the road will have to be effected in court, with the approval of a judge.
In our experience, the adversarial process works very well for people who no longer have to have a relationship when their case is done. Going to court can be very effective for those people, but takes a long time. By the same token, the litigation process hurts people who need to have an intimate relationship over the long haul. Remember: taking your spouse to court will never resolve your conflicts. In most divorces, the real conflict is about communication of values or emotions or different parenting styles. All a judge can do is decide on a schedule or a payment amount. The real problems—the fundamental disagreements—can’t be resolved in a courtroom. If you have children with this person, you are forever linked by your love for your children. If, for instance, years down the road, you want your children to attend an important event with you (a wedding, perhaps, or a family reunion), your ex isn’t necessarily going to just happily switch weekends with you after living through a protracted court battle over that visitation schedule. You are always going to need something from that other parent; what is the best way to get through your divorce, to a place where you can co-parent amicably?
