No one contemplates divorce when they are getting married. While some people plan with a pre-nuptial agreement, many do not. If that relationship, which was at one point the most important and fulfilling aspect of your life, is ending, it is hard to envision what real “winning” would look like. Unfortunately, the reality is divorce presents many more opportunities to lose than to win. However, choices can be made to maximize the probability of obtaining a favorable outcome. Representing clients in high conflict, high net-worth divorces, I have counseled my clients on three key aspects.
- Avoid going to court;
- Stay forward looking, not stuck in past wrongs and grievances; and
- Make decisions that put you and your children in the best position to thrive, not just survive.
This is the first in a series of articles on how to “win” in your divorce and it is focused on the value of staying out of the court system.
The costliest, and often the most unpredictable, way to resolve any of the issues in your divorce is to ask a judge to do so. The cost is both emotional and financial. When judges make decisions, there will be a “winner” and a “loser.” Parents who lose in court are often more oppositional and less likely to be effective co-parents, so what starts out as a “win” often sets the stage for a long-term conflict that is damaging to children. The financial cost is obvious. An experienced family law attorney invests time to provide a compelling presentation of your positions to give you the best chance to persuade a judge to adopt them, and that will be expensive. The more issues that are unable to be resolved, the higher the cost will be.
Unpredictable results are the consequence of the Arizona family law system in Maricopa County. Judges have minimal training prior to their appointment to the family law bench. Most judges have no background in family law issues and no experience representing someone in a divorce. Each is assigned the responsibility of thousands of cases which severely limits the amount of time they can give any parties to present their issues. While the Arizona family law judges are doing their best to make decisions that are fair, they are learning on the fly. On their brief 24-month assignments to the Family Law Court calendar, they will have few cases, if any, in which there are significant assets or complex financial issues. Given the circumstances and despite efforts to educate judges in trial presentations, even the most diligent, caring, and hard-working judge is ill equipped to make decisions that will profoundly impact your life and the lives of your children.
Our Arizona rules and our law provide different and effective means for resolving your issues without going to court, including mediation, arbitration, and other private settlement processes. This provides an opportunity for more time to hear complex issues, to have an expert in the disputed area, and to split issues into multiple settings. The best advice I give my family law clients is to explore all those alternatives. Leaving important decisions to a judge, who will do their best, but not have the time to thoughtfully consider complex and difficult issues, may not provide an optimum outcome. Additionally, they will not have the knowledge that the parties do and will never have to abide by their decisions for the rest of their and their children’s lives.
At the same time, if alternative dispute resolution is not viable, be fully prepared to go to court if necessary. Be prepared by having information necessary to make informed decisions. What does that mean? Know what Arizona law provides to you respective to rights concerning your children and your property. Know the marital community estate – its liabilities, and the value of each community asset. Be prepared by using calm, thoughtful, experienced, and well-informed advisors to give you realistic choices to make well-informed decisions.
Finally, it is critical to be focused on resolving issues, avoiding unnecessary confrontations, and adopting approaches that seek to engage the opposition in solving problems. Cooperation of all parties, and their buy-in to alternative dispute resolution, is needed to avoid going to court.
