In just about every collaborative case handled, and the same is true for mediated cases, there comes a point where one or other of the parties, or indeed both, is so fed up that they find themselves in a place where they say “we’re never going to settle this; let’s go to the Court and let the judge decide”.
It is easy to see why. It is hard work peeling back the layers and emotions of every issue as you sort out how you each will live. What once was good for both of you now must work for each of you separately.
It is all so much more complicated than either of you ever imagined it would be. So, why not just present all of the issues to a judge, someone who has decided hundreds of cases and is able to render an objective decision, and be done with it?
Because turning your life over to someone whose decisions may well affect you for years to come, perhaps even your lifetime, is a very risky strategy.
So, what’s so risky? A judge will never understand the history of your marriage, the intricacies of your financial situation or the ingredients that contributed to the end of the relationship.
When push comes to shove, most people conclude that arriving at an agreement over which they themselves have control, even if imperfect, is much better than seeking justice, which is often illusory, in a courtroom. Don’t expect justice with anything other than a small “j”. Don’t expect a judge to be able to right the wrongs you think you have suffered.
Of course, we need the Courts and the rule of law. There are cases that must be tried but in divorce situations they are rare. Divorcing couples almost always know what they and their children need to lead satisfying lives after they are no longer sharing the same household. Of course, making those decisions through a structured out-of-court process is hard, but it’s not impossible.
Decision making in divorce is best facilitated by a lawyer who listens to their clients, asks pertinent questions to learn what is important to each of the parties and helps the clients to understand the long term implications of their agreements and decisions.
When the going gets tough, the lawyer will help the clients in the settlement discussions to stay focussed, not play the blame game and to act responsibly. Most people want to feel, when all is said and done, that they did their best, messy though it might have been at times as they grappled with, and at last concluded, their divorce.
If you would like to discuss this or your situation generally, please contact a member of our Family team.