Five Reasons To Avoid Litigating, If You Can


Posted on November 28th, 2012, by Matthew Smith in Custody, Divorce, Family Law. Comments Off

Five Reasons To Avoid Litigating, If You CanMany clients come to me expecting the worst from their spouses during the divorce process. They talk about how their husbands or wives will never settle, how they’re out for blood, and how they’ll stop at nothing to make the process as miserable as possible for everyone involved.

As a result of this fear, whether founded or not, many people want to begin their divorce case by taking overly aggressive and unnecessary actions that tend to diminish the possibility of settlement. I think part of an attorney’s job is to dissuade clients from embarking down that road unless it’s necessary to do so.

That’s not to say that anyone should roll over. There are clearly cases where the parties are playing a zero-sum game, and there are certainly parties to a divorce (and even family lawyers, unfortunately) who have no interest in finding common ground. But it’s always wise to take a moment and analyze whether an opportunity for out-of-court settlement exists, weighed against the merits of your case and how you define “winning.” People are often surprised to hear that nearly 90% of divorces ultimately settle, but the forces against litigation can be strong and convincing.

Here are five reasons to take off the war paint and reconsider whether there is an opportunity to avoid a battle royal in your family law case:

  1. Time and money. Take this to the bank: if you have an attorney, it will cost much more to litigate your case than settle it. This is even true if you attend all-day settlement conferences or hire a mediator. Preparation for and execution of your divorce trial, not to mention various preliminary hearings and twists and turns in the discovery process, often taking place over the span of a year or more, won’t be cheap, no matter who your attorney is.
  2. You make the call. As soon as you walk into a courtroom, you’re met by a judge who does not know you, your spouse or your family. The judge will do the best he or she possibly can, but won’t know the often-complex history of your marriage, and can’t possibly learn everything that’s important in a one or two day trial. You are handing your future (and in many cases, your children’s future) over to a complete stranger, who will have to make a judgment call without all the facts at his or her disposal. The outcome will be imperfect, imprecise, and often unsatisfying for both sides. Settling allows you to determine your own outcome, with all the nuance and detail that’s necessary to fit your life and specific needs. You are no longer merely a bystander in the process.
  3. You and your spouse are invested. When people reach their own settlement, they tend to be more invested in following through on it. There are fewer squabbles over visitation schedules and disputes over wording or technicalities. Ambiguities are reduced or eliminated because each side has signed off on a mutually-beneficial outcome.
  4. Your children will thank you someday. Many clients have told me that they’re grateful to have avoided the trauma of a litigated custody and visitation battle. Sparing the children from this miserable experience (whether they are present in court or not, they know or will eventually know it took place) is priceless for many families, and can lead to more peaceful homes.
  5. Litigation won’t make you whole. Many people have a distorted view of what a divorce trial can do for them. Rarely is anyone denounced or exalted in the trial, and satisfying victory laps are rare. As I stated in a previous post, there will be no public flogging for misbehavior, no plaudits for taking the high road, no ruling to heal a broken heart. The divorce process can be a challenging time in one’s life. It is best to move on from it with dignity while avoiding further infliction of pain upon yourself or your spouse.

The custody and divorce lawyers at Livesay & Myers, P.C. have extensive experience with both litigation and settlement of custody and divorce cases. We represent clients in Manassas, Fredericksburg, Fairfax, and throughout Northern Virginia. Contact us to schedule a consultation today.

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About 

Matthew Smith is a senior family lawyer in the Fairfax office of Livesay & Myers. He is the attorney in the firm most experienced in navigating the Fairfax County, Arlington and Alexandria family courts. An attorney since 2005, Mr. Smith has litigated every type of family law case in the courts of Northern Virginia, including high value equitable distribution cases, custody, support, and military divorce cases.



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