Going through a divorce? Consider divorce mediation over litigation.

Settle now or settle later. Sooner or later, odds are, you will probably settle. On average, 93% of all litigated family law cases settle before trial. Some will settle early and many will settle on the eve of trial. My experience shows that a typical scenario is the following…Dick retains his attorney and Jane retains hers. Dick meets with his attorney who soon after files the initial Petition for Dissolution. Dick’s attorney gets a general idea of the couple’s finances and marital story and then paints a pretty and usually optimistic picture telling Dick that he could indeed get the house, and the kids, and pay little or no alimony, and so and so on. Across town, Jane is at the fancy high-rise firm with her team of lawyers (because she is told by them that Dick will end up paying her attorneys fees), is having her own consultation with her lawyer who is undoubtedly making similar suggestions to Jane that she will be the victor and probably get everything that she wants. Jane signs the attorney’s fee agreement, files her Response, retainers are paid…GAME ON.

Then begins the litigation phase known as “discovery.” This is basically the process of I’ll show you mine if you show me yours (if only it was that easy). Actually, there is a mandatory set of forms that the parties must exchange that list all known assets and debts as well as current income and expense numbers. Although short at only a few pages each, they are comprehensive and signed under penalty of perjury. If an asset is left off or income understated, any subsequent agreement reached by the parties can be set aside on grounds of fraud. Many attorneys believe that in most cases these forms are insufficient; therefore, they pull out their arsenal of discovery tools to get to the meat of the case. Interrogatories are served, depositions are scheduled, motions are filed, and court hearings are set.

Eventually the discovery phase is completed and Dick and Jane’s attorneys have all the information they need to proceed with the trial. By the way, Dick and Jane really have little or no control over any of this. They trust their attorneys are acting in their best interests and doing what they need to do so they just sit back and watch as the fees escalate and the retainers are used up. And then what? Dick’s attorney tells him that after looking at all the evidence, he really is only entitled to XYZ and Jane’s attorney tells her that after looking at all the evidence, she really is only entitled to XYZ and then guess what…Yep, the parties settle and get their shares. The lawyers are the heroes because they settle the case before trial and Dick and Jane never knew what hit them. By that time the lawyers have made a good chunk of money. If they go to court with a case that really has no business being in court, two things can happen. One, they can lose (lawyers hate to lose), or two, they make the judge angry for wasting his/her time on something that should have settled long ago. Trust me – you don’t want to make a judge mad!

So I say, do the math. Settle now or settle later and end up with the same terms but a lot less money in your pocket (not to mention the emotional toll that litigation can and will bring). Of course there are exceptions. There are some cases that for one reason or another just need to be litigated. Trust me, these are the exceptions, not the rule.

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