If You Have To Initiate Litigation – You Probably Lost The Case!

For regular readers of these newsletters over these many years, you are aware of my position when it comes to divorce cases. They are not to be “won or lost”. Period! Whether you practice in a Community Property or Equitable Distribution State the scenario should be the same. Representing a divorce client is a process that is totally dependent upon your fact-gathering skills and the knowledge and expertise to use these skills to insure that the settlement process is fair to your client.

If you have availed yourself of the many resources out there you understand the case-law in your State, you know how pensions and retirement assets work and how to utilize those resources to achieve compromise and deal with marital debt. All of the marital assets have been valued. You are aware that the Settlement Agreement dictates everything and you enter into negotiations with the agreement already prepared in a manner that is most beneficial to your client. You may have employed an expert to draft those areas of the settlement dealing with the retirement assets if you lack confidence in actuarial areas but by the time you enter negotiations you know exactly how the plans work and what is most beneficial to your client. Your client understands you will not prevail in every area and you are aware of those areas in which compromise is acceptable and those in which it is not. You have fallback positions to insure there are no impasses.

Your opposing counsel may not have done their homework but that is o.k. because you have the facts at hand and his or her arguments will be emotional and out of ignorance. He or she will have to begin negotiating off of your settlement agreement, which will address all the issues at play.

If your opposing counsel is well prepared and approached the settlement hearing in the same manner, resolution will be even easier. What you are attempting to do is reach a solution that is as equitable as possible for both parties and if both attorneys understand that, the give and take will be meaningful and agreement reached.

Only when you enter negotiations unprepared do you really risk winding up in Court. Interestingly, only one attorney has to be fully prepared to reach settlement. If neither attorney did their homework there is an excellent chance that there will be no settlement and litigation will result. This is the worst case scenario. There is no way your client wants a Judge, who will only have cursory knowledge of the issues, to make a decision as to equity. It is always a crap-shoot. The cost of litigation and the more likely, less than favorable outcome to your client, puts your fee in jeopardy.

You can see why I say that if you have to litigate you probably lost the case. Once impasse is reached, the settlement is no longer in your control and you are no longer really representing the best interests of your client. You may get lucky and get a Judge who is knowledgeable on retirement assets and does a fair job, but based on my experience, pension and retirement issues that are adjudicated in court rarely resolve themselves equitably. Unfortunately, few Judges have the expertise or the Plan knowledge to address all the issues at play in order to settle that issue in a manner that will be truly equitable.

As always, the basic rule to successfully resolving a divorce case is knowledge and preparation. Over the years, I have observed that of our attorney/clients those who are least likely to wind up in court are those who have made the effort to educate themselves on how to prepare and draft good settlement proposals. They wind up with reasonably satisfied clients, avoid mal-practice and get paid. Worthy goals for all!