What Drives Divorce and Custody Litigation?

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Most of the divorce cases we handle result in a settlement. Settlements happen not because the attorneys are not aggressive enough, but because the parties, through the advice of their attorneys, are making agreements that are similar to how a court would decide the cases. Some unscrupulous attorneys will delay settlement for as long as possible in order to extract as much in attorney fees as they can, performing tasks that are not entirely necessary, but could still be justified. We have a few cases currently where we are convinced that the other attorney is doing exactly this. While it provides the attorney with more money, it ends up depleting the marital estate, and benefits neither the client, the other party, or the children of the two parties. Unfortunately, our legal system pretty much allows this behavior without a high degree of scrutiny or accountability. At our firm, if we think the case can and should settle, then we attempt to do so – usually through mediation, in the most cost-effective manner possible. Early, cost-effective settlement is not always possible, given things like erratic, irrational, and unrealistic opposing parties, unscrupulous and over-aggressive attorneys (benefiting financially along the way), or the complexity of the case requires a more careful study of the evidence and evidence gathering through the process of discovery. Discovery includes things like written interrogatories, requests for production, requests for admission, subpoenas, and depositions.

Settlements are rooted in the concept of compromise, but compromises should only be made when the law dictates it. Clients usually regret giving up their position when the law is in his or her favor, but I see it happen from time to time when a client just wants to be done with a case, even if the client is giving up on a good argument.

In order to know if you have a good argument or not, you must know the pertaining law, which is contained in codified statutes, but which also is contained in the more difficult to read and comprehend case opinions. New appellate court opinions are issued every week, and there are usually some related to divorce or custody every week or so. Even though these opinions decide other cases, case opinions shape and sometimes change the law. So, in order to make sure that a party is not wasting money and time on a bad position or giving up a position needlessly, that party needs to be advised by an attorney who knows the existing law and studies new opinions that are issued.

At our firm, we study each one of these new opinions, and we do so at no charge to our clients. We study these opinions so that we can assure that we are providing the most up-to-date legal advice to all of our clients. This ensures that our clients will not waste money on bad arguments or leave money on the table, unless they want to, which does happen. Sometimes we encounter a legal issue in a case for which there is no statute or opinion that clearly determines how a court must rule, or there is too much ambiguity or discretion for the judge built in to the law to predict with certainty what the judge will decide. In these types of cases, the judgment, common sense, and experience of your attorney is critical. You must always be asking yourself, after hearing all of the evidence given from both sides in this case, how will the judge decide this case? Does the law compel a particular outcome, or can the judge use his or her own discretion? If the judge may use discretion, how will the judge view the parties and their credibility? Which position is more persuasive? I have seen so many attorneys who seem to know the law rather well, but who have extremely poor judgment, and advise their clients to pursue losing arguments. Some attorneys get trapped by their own clients to pursue a bad argument.


Here are the Four Natural Desires of Humans, according to Bertrand Russell, that I believe are the essential drivers of drawn-out, costly, and unnecessary litigation, even when a client does not realize it, and certainly will not admit it:

Acquisitiveness—However much you may acquire, you will always wish to acquire more; satiety is a dream which will always elude you.

Rivalry – A great many men will cheerfully face impoverishment if they can thereby secure complete ruin for their rivals.

Vanity – Children are constantly performing some antic. “Look at me,” is one of the most fundamental desires of the human heart. It can take innumerable forms, from buffoonery to the pursuit of posthumous fame.

Love of Power – Power, like vanity, is insatiable. Power over human beings is shown in making them do what they would rather not do. The man who is actuated by love of power is more apt to inflict pain than to permit pleasure.

These are the forces that drive litigation. These are all negative forces, and will prevent both parties from being able to end a bad relationship and move on, at least until the case is over. When we take on a new client, our goal is to minimize these forces, or work around them, and to bring the case to an end as soon as it reasonably can, given the constraints the law puts upon us. That is our pledge to our clients. If you believe we are the right attorneys for you, you may come to our office to meet us in person and decide for yourself.

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