This recent post (reprinted below) at the Minnesota Divorce & Family Law weblog run by Gerald Williams illustrates a point that most family lawyers understand well. There needs to be a fundamental meeting of the minds for two parties to agree on a settlement. If not, settling those fundamental issues and getting the two divorcing parties to have that meeting of the minds is best left to a third-party, uh, ‘decider.’ This doesn’t mean that you can’t go back to negotiation a settlement on those terms, but you won’t get over that hump until

Given that it’s the playoffs, let’s use baseball as an analogy - if you can’t agree that you’re going to play baseball, it doesn’t matter whether you use aluminum or wooden bats, who bats first, or who gets to wear the home colors.

Settlement Versus Trial

Why do some divorce and child custody cases settle out of court, and some cases have to go to trial?  There are many factors that determine whether a family law case will settle outside of court, the most important which involve the willingness of the parties to compromise, and the willingness of the attorneys for the parties to facilitate that compromise.

Preparing for and proceeding with a family court trial is a long, expensive process. If the parties are close to reaching an agreement, but are unable to arrive at the final stipulated terms, both parties are likely to spend more on the expense of going to trial than they would if they EACH accepted the other party’s terms.

Conversely, if the parties are not close to reaching an agreement, there most likely is a principal issue that needs to be addressed by the family court. Examples are whether there should be any spousal maintenance at all; whether an antenuptial agreement is void or not; or whether a third party is entitled to visitation with a minor child.

In the first example, the AMOUNT of spousal maintenance might be resolved by compromise, but only if both parties presume that there will be spousal maintenance. Otherwise, the dispute about whether there should be spousal maintenance at all may need to be decided by the court. In the second example, how to apply the terms of an antenuptial agreement can be negotiated and compromised. But if there is a fundamental question about whether the antenuptial agreement is even valid or not, the family court may need to render a decision. In the third example, discussions about a visitation schedule cannot take place if there is disagreement about who is entitled to have the court-ordered right to have the subject minor child in their care in the first place.

One key advantage to a settlement out of court is the fact that the parties have the final say in the terms of their divorce or child custody dispute, rather than the court. In all likelihood, the parties will be assenting to a conclusion that is not as favorable as their best possible result in court. But it may be worth avoiding the risk of going to court and not getting the best possible result.

Thanks to the Jersey Divorce & Family Law blog for the heads up on this post.