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.
A Good Perspective on Settlement Versus Trial
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 …
The judge who is assigned to our case has been noted as being “father” unfriendly. Such seems to be the case with most of the judges and referees in Ramsey County. Why this matters, besides the obvious, is because my wife has refused to compromise, mediate or even talk to me about issues concerning our divorce, which she initiated. I assume that if there is no settlement, the judge decides, and with a judge known to be father unfriendly will decide for my wife, which in my view is not in the best interests of my children or myself, for that matter. What are my options? Can I request a new judge? Can I nullify him? Can my wife be compelled to negotiate?
Regarding the question of requesting a new judge, or nullifying him, please refer to my new post, “Removing a Judge.”
Regarding the question of compelling your wife to negotiate, that depends largely on your wife’s attorney, if she has one, and the judge who presides over the case, who may (or may not) lean on your wife to negotiate.