By Robert M. Preston, Esq.

Perhaps the most important question regarding the prospect of any litigation is whether or not to settle your case out of court. This is especially true in the area of matrimonial and family law matters, where emotions and sensitivities can run unbelievably high--and the stakes even higher. Having witnessed the effects of both trial and settlements on all involved, it has become extremely clear to this author that a negotiated agreement between divorcing spouses is the clear choice for many of reasons.


This may not be as obvious as one might think. It is entirely possible that both trial and settlement may result in court appearances, arguing lawyers, the assistance of a judge and an ever-present court reporter. In fact, a good many settlements occur just before or during a trial, such that the preparation and presentation of the parties' goals are similar. Naturally, the glaring difference between the two options is who makes the decisions. The question boils down to this--would you prefer to make the decisions about the rest of your life, or would you prefer that the "stranger in the black robe" call the shots regarding your kids, your money, your house and your everyday existence?

To be sure, this is not a knock on the judiciary as I believe most, if not all trial judges would prefer to preside over a matter settled, than a matter tried. For them, I imagine the enormous responsibility of deciding the fate of a family (especially young children) is daunting. In reality, a judge only has as much insight as you and your counsel can provide. Can they ever know the true day-to-day reality of your marriage or your financial or custodial situation? Can anyone, other than the participants themselves, gauge the future based on the knowledge of the other people involved? Who knows better about a marriage, and consequently the dissolution thereof, than the parties about to be faced with such reality? Although emotions often cloud the reality of divorce, clear, objective, long term thinking is best achieved by the people that will live it when the day is over.

It is for that reason that your matrimonial attorney must possess equally developed trial and settlement skills. An experienced divorce lawyer once told me that it is truly impossible to be successful at one without knowing how to do the other. This is primarily because one must be confident knowing that if a reasonable settlement cannot be achieved due to an unreasonable position by one person, then the option (or threat, as most see it) of trial is still viable and real. Your attorney must be confident enough to say "no" to postures that are unsupported by the law and facts of your case. If the fear of conducting a trial or hearing is great, it will be evident during settlement negotiations. There is always the possibility that the inexperienced may be more inclined to Agive away the store@ at your expense or do anything to avoid the preparation of, and performance at, a trial.


It is precisely for that reason that I have found that the "best" settlements are those that occur with the benefit of two lawyers schooled in the ways of cranky trial judges, erroneous decisions, appeals and the system itself. What, however, is a "good" settlement? There is no strict definition, but only rules of thumb and educated, intuitive hunches to the effect that you did the right thing for you (and your children). It is often said that a fair negotiation is one that results in both sides feeling as if they won and lost at the same time. More precisely, there will always be a feeling that important issues were thought out, conceded or modified -- hence, the definition of compromise. As such, a fair agreement deals with each issue in light of others, and causes the divorcing spouses to prioritize the importance of their objectives. Simply then, when both spouses are diametrically opposed on one or more vital issues, such as custody, there almost always will be a trial. Even in custodial disputes, however, agreements are quite possible and especially preferred. Part of your lawyer's job is to tell you what issues are, in fact, vital. What, you say? Isn't the point of all this ink that you should be making your own decisions? Yes, however, it is unrealistic to believe that the emotions of your matter may not at times cloud your ability to be reasonable (..."if I do not get that twenty year old, torn couch, there is no deal, even though we have worked out custody, visitation, and the distribution of our $20,000,000.00 estate"....). Don't laugh, stranger things have happened. Naturally, certain issues will be all too clear as being significant. For instance, your ability to be self-supporting and independent. The way your children will be guided and nurtured by presumably two households, instead of one. Any necessary changes in lifestyle (after all, the funds that used to support one home may now have to carry two). Financial considerations such as taxes, retirement and insurance. Some as basic as how to budget, or even maintain a checking account if that is something that was not part of your everyday routine during the marriage. Once you are clear on the issues, you are then in the best position to determine how each of them should be dealt with.

In most states, settlements occur by way of written agreement or by stipulation placed on the record in open court. The manner in which your case settles depends on the timing and specific court rules of your jurisdiction. If all of the players are in one room, for instance, it makes sense to spread the terms of your agreement on the court=s record while it is still clear, understandable and meaningful to both parties. Moreover, many times a judge will assist the parties by pointing out potential pitfalls and conflicts based on his or her knowledge of the post-judgment matter that was on the calendar just before yours. The feeling of "closure" before a judge can be exhilarating. Months, or sometimes years, of agony may very well be coming to an end for both you and your children.

In most other instances, your settlement will be embodied by a lengthy, wordy (that's what lawyers get paid for) written document called different things in different places. In New York, for example, any stipulation of this sort must conform to strict rules regarding it's execution and contents. By writing the issues down and reviewing them carefully with your attorney, you will be less likely to leave something out (although it is almost impossible to consider everything such as, "what if the kids go to separate camps and they both get poison ivy on the same day, at the same time -- who buys the Caladryl lotion for whom?"). A written agreement may be the product of countless conferences, letters, meetings, screaming matches, discussions and the like. In the end, however, your signature on that document signifies that it is the product of your knowledge of the circumstances and beliefs about the future...not someone else's vision defined by your respective lawyers during trial.


This article is neither the place nor the time to describe the full blown trial process. Thanks to O.J. and Court TV, however, many potential litigants have seen the inside of a courtroom, and what the going ons of a trial may look like. The reality, however, greatly impacts the settlement process. Hours, days, or perhaps weeks may be spent waiting for the case to start (after all, I'm writing this in New York). Moreover, do not forget that you are probably paying your attorney for standing there while other cases are heard. Yes, sometimes mounting legal fees do put pressure on the parties to settle, and rightfully so. Each hour spent waiting for the trial to begin, or even participating in the trial itself, means that there will be less to divide in the long run.

In most cases, a proper trial is impossible without the assistance of expert witnesses to support your theory. This is true in custody cases, where a forensic psychologist might be heard by the judge as to the parties' respective custodial fitness or the propriety of visitation. Furthermore, experts are called as witnesses to assist in valuing assets such as businesses, real estate, investments, and the like. Again, time and money are spent in order to allow someone else to offer an opinion about some aspect of the rest of your life -- at times unavoidable, but in most instances, just costly. This is certainly not to say that experts cannot be a part of the settlement process. In many instances, a well reasoned report by an expert will be the primary impetus for an agreement. Any matrimonial lawyer must therefore be prepared to analyze such a finding and advise the client as to whether a challenge is warranted, necessary or perhaps even possible.


Divorce litigation is a hotbed of emotions and feelings laden with potential anger, fear and sadness. It is for that very reason that all involved are best served by doing everything possible to settle out of court prior to embarking on the unpleasant journey that is a divorce trial. The avoidance of testimony by soon to be former spouses, and, moreover, children, is priceless. It would be impossible to recall the number of times that words have come back to haunt those who uttered them on the stand. Likewise, it would be impossible to list those times that the spoken word at a custody trial has been used to poison young, impressionable minds (.."you know your mother admitted that she had an affair"). Yes, there are some people who tell their children things just like that, out of anger, or even some warped sense of vengeance.

At the risk of sounding like a cartoon character, let your conscience (knowledge, experience, intuition, etc.) be your guide, and not someone who you will probably never see again.....except, of course, if you remarry.

The author practices exclusively in the area of family law litigation (and settlements) in the New York area.

Posted on Saturday, February 24, 2007 at 01:27PM by Registered CommenterSite Administrator in | Comments Off

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