Child Custody And Divorce: Free Legal Advice
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That's the question that needs to get asked the most. One lawyer will telephone the other, and ask that question. Your lawyer will telephone you and ask that question. You may, or may not, consult with others (your family, your friends, another lawyer, etc.) and ask that question, but the question definitely NEEDS to be answered. If the answer to that question is "no", then both sides are going to spend vast sums of money, invest large chunks of time, spend days or weeks or even months in a courtroom, endure the psychological and physical strain of a trial, and then win, or lose, or get some totally unsatisfactory middle ground, that amounts to less than winning, but more than losing.
Don't get me wrong: sometimes you HAVE to try the case. It may be true (not often, but it happens) that your facts are so unique that you believe that you do not fit within existing law, and the existing law happens to be against you. This is far more likely in other sorts of civil litigation than in a divorce case.
More likely, the other side is being so unreasonable (and they, undoubtedly, think that YOU are being unreasonable) that the only way you can get what you think you have coming to you is to try the case.
If you try the case, you are going to spend thousands of dollars. That's the main point against going to trial, as we add up the pros and the cons of "can we settle this case?" It's simple economics. Some things are not WORTH going to trial over.
Household goods are the first example to come to mind. Here's how a lawyer's nightmare unfolds. It seems that every lawyer has to deal with, eventually, THE YOUNG COUPLE WHO MADE A MISTAKE. They are a stereotypical couple (and fictitious: if you are twenty, and reading this, I apologize in advance. I didn't mean you. Really.) They were married, against their parents advice, when they were eighteen, and they have been married about a year and a half. Fortunately, they have no children (they didn't get along that well, even then, to accomplish that) and frankly, their respective parents are paying their attorneys fees for them. ("Thank god he's finally come to his senses." "She's finally going to leave that no-good.") They fight like cats and dogs. They can't even agree on what time of day it is. They're getting divorced, and most everyone who knows them would agree that they never should have been married in the first place. They may own a house, but it has no equity: they paid two or three thousand dollars down, on a price of thirty thousand dollars, but the closing costs were twenty eight hundred, and they still owe twenty nine thousand and change on the mortgage, and if they sold the house, and paid a commission, they would lose money on the deal. They're arguing about the personal property: who's going to get that stereo? Who's going to get the big-screen TV? HE owned the stereo before they got married, but SHE supported him for six months, after he lost his gas station job, and made some of the payments on the stereo. SHE owns the TV, because it was a Christmas gift from him, but HE is still making payments on it. These items are used furniture, and not worth anything near what was paid for them, if the items were sold at auction.
Here's the problem: they won't agree. They won't agree as to who keeps the house (it's more of a liability than an asset), and they won't agree as to who gets what items of personal household goods. You'd think that SOMEONE could drive a little maturity into their thick skulls, and say "Look, it's not worth it. We're talking about a used stereo, and a used TV, and if we have to, we're going to toss a coin, but we are NOT GOING TO TRIAL OVER A USED STEREO!"
Then, of course, you get the following retort, from the client: "I'm gonna get screwed out of my [house], [stereo],[big-screen],[computer],[bedroom set] aren't I? That [bitch], [bastard] is doing it to me ONE MORE TIME."
Well, of course, those of us who are over twenty recognize that these things aren't really that important, and we all feel a little smug over the fact that we are older than twenty, and unlikely to be maintaining that (unreasonable) position. Why, it just doesn't pay, does it? It's not worth it, is it? Go get a NEW stereo, for crying out loud, with the money you saved by just giving up the old one, and not paying the lawyers to argue over the old one in court....
Well, that's the problem, and, if you're experienced, that's the solution. Don't forget, MOM AND DAD are paying for the divorce, so the kids think it doesn't cost them anything to keep up this bickering. Maybe it doesn't. They don't have to agree, and they won't. Let the other side give in, and, if the other side won't give in, then we'll just GO TO TRIAL, and if mom and dad's bill for the divorce is higher, then, so be it. But I'M NOT GIVING IN. I want my [stereo], [bedroom set], [computer]. Get me a trial date.
Now, if you're older than forty, you see this coming, and if you're older than fifty, you probably nailed it some time ago, and I'm boring you. Sorry. But if you are a young lawyer, looking for a solution to get you out of this mess, here it is.Solution. Look?
So there we are. Some things are just not WORTH going to trial over, and, if it's sufficiently not worth it, your lawyer will advise you to just give in. Let it go. You're saving money. It will cost less to give in than it will cost to go to trial and win. And you might not win.
The better course is to list those items still at issue, and let your lawyer do a little horse trading. Telephone the other attorney. About your last offer: We'll give in on B, D, and E, but we have to get A, C, and F. We're positively rigid on F, there's no room to negotiate. Talk it over with your client, and get back to me. Yes, we can settle this case, but your client seems to think that being reasonable means giving us more time, so that we can come to our senses, and agree with him. We're not going to agree with him. If you want to talk, let's talk. But we've got a trial date coming up, and we have to get ready for trial if your client isn't willing to be reasonable. My client knows it will cost a lot of money, but does yours? Does he really want to spend all that money for those witnesses, knowing that two of his witnesses have to apply for work release from the jail, just to come to court? The judge is going to believe people like that? C'mon, Harry, I'm saving you money here. Your client, too. You'll call me tomorrow? Thanks. Talk to you then. Bye.
Harry will call tomorrow, and let me know what his client thinks of this. Then I'll call you, and let you know where we're at.
Good luck with it.