I am not an advocate of using litigation to resolve most Family Court cases. As you may know, I have been a trial lawyer for nearly 20 years. I have tried more than 100 jury cases, including 6 murder cases, and have obtained excellent results for most of those clients. My level of trial experience exceeds that of most criminal law and family law attorneys in the tri-county area. As an accomplished and skilled litigator, I can tell you, Family Court is often the worst place to resolve legal problems involving families.
Sometimes litigation is the only realistic way, but this is rarely the case. Family-related disputes (divorce, separation, custody) are distinctly different from other cases in the judicial system because the ramifications of these cases have a direct impact on all of us. We all know people going through a nasty, contested divorce. Because these situations are so complicated, unnerving, and intense, people naturally want or need to discuss the ongoing litigation. The worry, sorrow, and anger can effect work and school performance as well as relationships with friends, neighbors and family members. The amount of time and energy spent is astounding; it is natural though. Litigation is like war, and people have to deal with the emotions around war somehow. Like war, family-related litigation has a ripple effect in our community unlike any other kind of case.
So when should you consider resorting to the courts?
The courts will impose very clear “ground-rules” in a case restraining the use of certain (or all) marital assets and providing a structured parenting plan for the children, if necessary. They will also require the disclosure of information (lawyers call this “discovery”) between the parties necessary for a resolution. Finally, the courts have the authority to enforce their orders with fines and even jail time. I almost always recommend court intervention in three types of cases:
Substance abuse. Cases involving serious substance abuse issues are appropriately filed in court. Often people who are actively abusing alcohol and/or drugs are simply not rational and issues around trust prevent effective use of collaboration or mediation processes. The party’s inability to use substances with appropriate boundaries dictates the need for court-ordered structure to ensure the safety of children and protection of the family’s finances.
Mental Illness: When serious mental health issues are diagnosed or strongly suspected, and the party with the illness is either untreated or not stable, the court again can provide important structure in resolving the case. Similar to the issues regarding substance abuse, the concerns with parties suffering from mental illnesses stem from lack of trust, rational behavior and reliability with regard to performing obligations in the separation and divorce process. Court intervention will compel compliance if necessary.
Physical violence: Cases involving physical violence should also be processed through the courts. Even if physical assault is not ongoing or regularly occurring, the threat of assault can easily prevent good decision-making. Often, Courts will impose boundaries preventing parties from harming one another and resolution can usually be developed with physical threat “off the table”.
Emotions usually run very high in people facing family disputes – this is not news. The above scenarios are not meant to judge people whose behavior is influenced by drugs, violent feelings, or mental illness. However, the behaviors do warrant serious boundaries being imposed upon them.
Ok, but what if my spouse had an affair?
Adultery is by far the most common allegation of marital fault seen in court. However, it rarely influences the outcome of a case, with one exception. If the adulterer-spouse has an otherwise legitimate claim for alimony, and adultery is admitted or proven in litigation, that spouse will be barred from receiving any alimony. If the “offending” spouse is not entitled to alimony, the extra marital affair will have very little impact on the final resolution. Regardless, cases involving adultery that do not involve substance abuse, mental illness or violence, are often best resolved outside of the litigation process.
So, why do divorces with no drugs, mental illness, violence, or adultery end up going to Court?
One reason is: Habit – it is how the Family Court system is set up. Out of habit, some experienced lawyers file a lawsuit in a divorce case as their first course of action. They simply are not trained or skilled in trying other approaches. Our Family Court system has been created and sustained by attorneys who, like all people, resist change. Justice Sandra Day O’Connor reminded us once that our courts were designed to be the last resort of conflict resolution, not the first place you go to resolve a legal or marital problem. Her wise words need to be taken to heart by all of us.
A person facing separation/divorce/custody disputes may not be aware that there are alternative ways to resolve disputes. As a person facing family law for the first time, you might rely on friends‘ experiences, which by and large have used the old model, i.e. habit. Given the reality of our court system, it pays to investigate the alternatives and make a rational choice – not one based on habit – even if it is disguised as “experience”.
Don’t people who go to court “get more” fairness, money, etc. than those who settle out of Court?
Seems like that would be the case but, NO! Generally, when a dispute arises over separation and/or custody of children, both parties have some valid claims. Attorneys and clients feel they should “get as much as they can” for the client from the opposing party. This is natural (it’s war, remember?). Depending on resources available (i.e. how much money you have at your disposal), parities and their lawyers will often be working to convince a Judge to give them a few more percentages in the equitable division of the property and/or a few more overnights with the children. They might be using accountants, psychologists, Guardians, family friends and co-workers in this effort to convince the judge, and because their claims are valid and they have the money, they feel it is justified. But the potential benefit (ie “winnings”) is generally very small and the risks and cost are huge.
When should I consider avoiding court?
The most frequent reasons leading people to decide to separate and divorce are personal to the family. Passive aggressive behavior (one party is just mean), lack of communication, lack of affection, “controlling” (i.e. insecure) behavior, etc. Essentially the parties are not getting along, are no longer compatible, are very unhappy, and need to separate. Both parties are rational, of sound mind and simply need to find a way out of their marriage. In my opinion, court intervention in these cases is simply not necessary and no benefit will be obtained by either party.
When spouses are simply not getting along, there is very little point to litigation. Litigation has the potential to bankrupt the family and leave permanent emotional scars. The main winners are the lawyers who profit financially from the family tragedy. The more you fight, the more lawyers make: they know how much money you have to spend, and may be unwilling to quit the fight.
It also can take years to get a final resolution in Court. When it finally gets there, your case will be heard by an overworked judge who will not have sufficient time to give the matter the attention it deserves. At the end of the day, no one will be happy with the Judges ruling and the animosity within your family will likely continue for many years to come.
So what should I do if I have decided to separate from my spouse?
My recommendation? If you and your spouse are in the vast majority of couples who are simply not getting along and have decided to separate, investigate the use the collaborative law process or the mediation process to resolve the issues. These processes work outside of the court system and are forward thinking. They resolve the issues involved in your separation by looking to the future relationship of you and your family. These processes will empower you to create a plan that will be a benefit to your family in the future, preserving relationships and your money. They are also discreet. Since they operate outside of the legal system, your friends, family members, co-workers, classmates, etc, will not be involved or even know about it unless you choose to tell them.
For more information on Collaborative Law, go to the South Carolina Collaborative Law Institute at www.sccli.org/ or the International Academy of Collaborative Professionals at www.collaborativepractice.com/; For information on Mediation, go to the Mediation and Meeting Center of Charleston at www.mediationcharleston.org/.
Vitetta Law Group