They Try Like Hell to Stay Out of Court.
Despite their familiarity with the system and despite any perceived advantage they are believed to have, divorce insiders think that going to court is a losing proposition. They try to resist the inclination to fight, and do everything they can to settle their case before it can reach a courtroom.
Going to court wastes energy, time, and money and is a last resort; it is something they will consider only when there is no other choice.
Why are the pros more reluctant to fight than the public is? What do they know that the average person does not know?
They know what the divorce legal system looks like from the inside; and they see fighting it out in court as a waste. They are not misled by Hollywood, and the various lawyer shows on television, which have traditionally depicted courtroom justice as being clear-cut, instantaneous, and sure. They know that everyone leaves the court process with less than they had when they entered it.
They regard litigation (taking the case to court) as a counter-productive force that destroys their chances of achieving a healthy negotiation climate.
They know the system doesn’t run on time and doesn’t have the magic that the public thinks it has. They know there are no winners in a divorce battle, and that the outcome of a divorce trial can only define the extent of how much they will lose.
Their experience is that everyone leaves the litigation process feeling frustrated, disillusioned, and poorer. They see going to trial as an emotional vampire that sucks the spirit out of people; they liken it to mental cruelty all over again.
Divorce insiders know that over 90 percent of all divorce cases settle before trial, with many settling in the very eve of trial. It makes no sense to them to spend months (and lots of dollars) gearing up for a trial that, statistically, isn’t going to happen. They would prefer to spend their energy and family funds working toward an early out-of-court settlement, rather than following the typical pattern of waiting until the end of the case to begin serious negotiations.
Because more than nine out of every 10 divorcing spouses reach a settlement before they ever get before a judge, insiders realize they will not get to vent and speak their minds in court. They know they will be deprived of the opportunity to tell the judge about the injustices, the dishonesty, the betrayal, the adultery, the lies, the pain, the unfairness, and most of the other things that non-lawyers think the judge should hear. They know that litigation cannot provide them with the satisfaction that non-lawyers so often expect.
They know their emotions, feelings, and pain do not count in the courtroom. Instead, when deciding a case, the judge is a duty-bound to stick to the facts and the applicable law. The judge is likely to be prohibited from considering their underlying humanity, which is the very fulcrum upon which they base their sense of justice and entitlement.
Even if they were to get the opportunity to testify in court, they know they still wouldn’t be able to say all that they want to say. They would be allowed to speak only when answering questions put to them by the lawyers, and that the rules of evidence greatly limit what the lawyers can ask.
Most people look to the judge to mete out the justice that their spouse has long withheld. Top divorce lawyers, however, know there is no back pay in divorce and that the court cannot consider misconduct in determining monetary or property awards. In a sense, divorce is where the guilty go free.
In other areas of law, litigation puts an end to the problem. Divorce does bring legal closure, but it often causes additional family problems. The emotional devastation caused by litigation can last for decades.
Divorce court is really no place for divorce.
This article was originally published at The Huffington Post February 6, 2012. Reprinted with permission from the author.