Open/Close Menu Divorce Done Differently.

In every contested legal matter someone will lose.  That does not mean each case will receive an all or nothing ruling, but even if a party wins nine arguments in a given trial but loses the tenth, that one loss could be significant.  A recent case will help illustrate my point.

A few weeks ago I had a case where my client’s ex-husband wanted to modify the possession and visitation schedule of the parties’ two high school aged children.  The father said he wanted the older kid to live with him full time because that’s what the kid wanted.  In actuality I believe the father only really wanted custody of the kid so he could get out of paying mom child support.  Whatever the case, when the judge ordered the siblings be split, dad was completely caught off guard! The judge ordered the older kid to stay with dad full time, and the younger kid to stay with mom full time with both kids together rotating weekend visits with the parents.   Dad had never considered that by opening the door of the court to get more possession of one child he stood to lose possession of the other child.  Would he have filed the suit to begin with if he thought he could lose?  Maybe.  Maybe not.  But his shocked expression and red face told me he sure did not see the judge’s ruling coming.  He should have.  There is always a chance to lose in court.

The courts are tasked with handing down fair rulings.  But what is fair?  In civil court the judge decides, based on the facts, what and how much the plaintiff deserves if the defendant caused damage to plaintiff.  In family court in Texas, the court seeks to hand down a “just and right division” of the marital estate in a divorce that acknowledges the contributions both spouses made to the marriage.  Even in criminal court, the judges pass down sentences that society thinks are fair for different crimes; in theory the punishment fits the crime and is fair to the defendant and to society.

In order to pass out “fair” rulings the courts examine all manner of evidence and factors to determine what is fair to all the parties involved.  For example, it may be fair in one divorce to award one spouse the marital residence while the other spouse keeps her entire retirement, which may please one spouse, and crush the other.  But in another similar divorce, the parties may have to split both assets with each party taking the cash value of the assets because such a division is more “fair” under the specific facts of that case.  Again, such a result could make one spouse jump with joy but leave the other brokenhearted about losing half her retirement. The point is regardless of how “right” a potential litigant thinks he or she is, there is always a chance of losing one or more major issues in court.

So what can a potential litigant do to minimize the possibility of loss?  First, seek out-of-court settlements whenever possible.  Try to resolve the situation through the normal customer service channels or with polite letters offering potential resolutions that will satisfy you.  If a problem can be overcome without filing suit, then you not only get satisfied, you save your own money and time litigating.

Second, if you must file suit, consider your worst case scenario.  If you must lose the house, car, toaster, and dog in a divorce but you absolutely cannot bear to lose custody of your children, then you and your lawyer must focus your case on the issue of custody of the kids.  In other words, you must prioritize.  Prioritizing also allows you the flexibility to negotiate on less critical issues so you are stronger on your must-win issues.  Many times, this type of strategy will allow the parties to negotiate a settlement that disposes of the conflicts in a manner that is acceptable to both parties.  An agreed settlement before trial is much less risky (and less expensive) than throwing yourself upon the mercy of the court who must also consider what is fair to the other side in your case.

As always this essay is intended for educational use only and is not a substitute for competent legal representation.  If you are considering filing suit against someone, I urge you to seek a lawyer familiar with that field of law, and be sure to ask about the possible outcomes.  Be sure to inquire about what you stand to lose if your case goes all the way to court. Sometimes a suit is absolutely required because a person cannot get relief any other way.  But even in those cases, it is possible that everything will not go as planned.  Be mindful that losing is always an option.