Settlement or Court Litigation During Your Divorce
A quick check of the dictionary indicates that the word “settle” has many meaning. Settle can mean, among other things, to agree, covenant, compensate, reconcile, mend, compromise, reside, or verify. As I use the word, settle or settlement means to resolve a dispute.
While representing clients over the years, I have identified certain factors to consider when addressing the pros and cons of a proposed settlement. The basic calculus boils down to resolving a dispute through negotiation with an opponent or by way of a judicial decision. To begin, settlement does not mean capitulation. If an opponent’s position is so rigid or fundamentally divergent from what the law would provide, resolution by court is appropriate. That being said, the contrast between negotiating with an opponent and the uncertainty in determining a court outcome is not usually so stark. Settlement, particularly in divorce or custody cases, is made up of many shades of gray.
It is also useful to understand that a court decision is inherently limited by the boundaries of the law. Judges are prohibited from granting relief for anything other than what is available to a party through statute or case law. These boundaries can diminish the creativity of parties to find a solution to the problem that they really may wish to address. Similarly, the emotional concerns of parties are rarely dealt with adequately when a dispute is resolved through a judicial decision, especially in fights that involve members of a family. Resentments that are not dealt with because of the limitations of the litigation process can continue for generations.
The high cost of conflict is yet another factor to consider when evaluating a settlement proposal. While fees for attorneys and other experts that may be needed to present a case properly initially come to mind, the high cost should also be measured in terms of time and energy. Often, a “Greek chorus” of friends or relatives will voice their opinions on what should be done or whether a settlement is a good or bad idea. While such people are generally well-meaning, it is typically not their time, energy, or funds that are involved in the case.
Folk wisdom tells us that a good settlement occurs when everyone is a little bit unhappy. It takes courage to make a final decision to settle and to set aside the opportunity to air grievances before an impartial court. For individuals dealing with divorce and custody, the necessary and painful re-organization of their families, a reasonably crafted settlement can mean achieving a measure of peace to move forward with life.