There can be consequences in taking your case to the judge instead of settling your differences outside of court. When you go before a judge in custody or divorce court, the judge alone is going to decide your case and it will be based on limited facts in a limited period of time.
Judges are also handling thousands of cases every year and they hear these things every day. Also, they are a stranger and do not know you or your children. Having a judge decide your case will always run the risk of you not getting the best outcome that you could have had, had you tried to settle the issues outside of court.
With that being said, there are issues that are too complicated or that really can't be settled out of court and you have no choice but to go to trail. But if there is a way to settle some of the issues if not all of the issues then I strongly encourage you to try.
As an example I recently was in mediation on a divorce case where there was nearly every issue in the book: child custody, parenting time, division of debt, property, a business, real estate.
And I guarantee had they taking these issues before a judge they would have both walked away from the trial with decisions that made them less than happy. When people settle they will also have things that they are not happy with but it is better if you're invested and had a role in that result.
In this case everyone was in agreement that my client who is a stay at home Mom to 3 children deserved spousal maintenance. They also agreed that there was a significant amount of debt. And in Arizona the law says the debt that was acquired during the marriage is divided equitiably and in most cases that means equally.
So my client who is a stay at home Mom who doesn't have a lot of experience in the workplace, if she went to trial is going to walk away with $50,000 in debt. So both sides put their heads together and the other side agreed that my client would have a hard time paying the debt off. And they also agreed that my client was entitle to a few years of spousal maintenance.
So what was agreed upon was the husband was willing to take on 3/4 of the debt in exchange for the wife getting a less amount of spousal maintenance of the course of the next few years. So that was a real attractive proposal for my client because she doesn't know how she would pay $50,000 in debt after the divorce is final.
She has a minimum wage job and she needs to have a job that is flexible since she is raising 3 children on her own. So we went a step further and proposed that instead of the husband paying spousal maintenance to my client over a couple of years, say for $1,000 per month that maybe he give her a lump sum up front. Like $20,000 up front instead of $24,000 over the next 2 years.
So that would decrease her debt load and she could go into the world as a divorced woman where her finances would be something she could manage. The other side has not decided yet whether to accept our proposal, but the husband really seemed really interested in paying a lump sum in exchange for taking on more of the debt.
So that was a creative result that we would not have gotten had we gone to trial. So get creative, do research on the internet and make a proposal that works best for your children. The sky is the limit when you are settling outside of court.
Wendy Hernandez is a family law attorney in Phoenix, AZ and founder of Command the Courtroom which teaches you how to handle yourself in court and achieve the best outcome when representing yourself in your divorce or child custody case.