What can you do when all the court decisions seem to be against you? Your judge just seems not to get it and decisions are decidedly favoring your soon-to-be-X. How can you change your strategy to get on the “right” side of the judge?
If you are in this situation my heart goes out to you. You begin to believe that the judge is being paid off by the other side or that your legal counsel is just not good enough to beat the other side. Unfortunately in family court, the judge you get is the judge you get. You can’t change your judge unless there is a major conflict of interest.
So what do you do?
A few suggestions;
Avoid the court – which is always a good idea regardless of your judge; try to negotiate and settle via consent order.
If you really have to go to court – pick your battles. Be careful to only ask for what you can reasonably expect to get and keep the list short.
Get out of the court into mediation
Agree to binding arbitration if you believe that your spouse will not negotiate in good faith
Before you do anything on the list above you need to take a hard look at why you are in this position. What have you done, consciously or unconsciously to get you in this spot? What can you do differently? Is there a different approach that might work better? Have you been reactive rather than proactive? Have you always been on the defensive rather than the offensive? Is there a way to nudge the situation into your favor?
When you are stuck in a difficult situation getting a new set of eyes to review where you are can be very helpful, even if it costs you a few dollars. Talk to a divorce consultant, a different lawyer or forensic accountant that specialized in divorce, the questions asked by the new parties can be the key to shifting your situation.
It struck me that when folks are involved in divorce this mindset is what causes much of the troubles.
I have seen complaints for divorce that claim that the other spouse committed adultery or was emotionally abusive; certifications claiming that the other spouse has stolen money, gambles or looks at porn on the family computer. As you can imagine these types of claims cause the divorce to go into a tail spin and results in the family spending every penny they have on legal fees to prove that they are right. It goes further; many of the professionals involved in divorce jump on the bandwagon and believe what is told to them by their clients. Every single court motion done is all about how the client is right in asking for relief, all the documents attempt to prove their position to “win”.
What if we just stopped and asked the question – What if I am wrong? If you were wrong how would you change your actions?
Without question, while you are in the thick of a divorce this will be difficult to do. Perhaps you can ask the folks around you to ask the question of you on a regular basis. By folks I mean your friends, family and your lawyer.
When you are angry about what your soon-to-be-X has done “to” you; ask the question what if I am wrong about their motivations or intentions or about how I perceive this? Looking at this from a fresh perspective will allow you to pause, even if it is just for a second, and let a different view enter into your thoughts. This can be transformative.
If you discover that you are wrong it may be possible to shift the course of your divorce and end the litigation or head to a mediator and negotiate a settlement.
A few years ago I wrote a blog called “Time Kills Deals”. The blog talked about how prolonged negotiations not only cost more money in legal fees but “time” itself can cause folks to get fixed in their own positions.
I still believe that the best outcomes from a divorce happen when the parties move quickly through the process. However there are some folks who just need more time for the shock of the divorce to settle in and are just not ready to make these decisions.
This will obviously be very frustrating for the spouse who wants it done.
Unless there is tremendous wealth involved, divorce strains the finances, (same income two households), the ability to change/downsize your lifestyle to meet this challenge is not easy and usually the lower income spouse is struggling and savings are used to meet the gap. The longer the situation persists the more savings are used and, at the end, when you would like to have a nest egg available, it is gone so this delay is not only frustrating it can be costly.
A cynic might think that the spouse who is not making decisions is doing this as a negotiating ploy; your spouse states their position and then every time you try to settle the situation to make a compromise their demands just get bigger. If you believe this is the situation and want to settle just give them what they want, if you can, and be done.
If their demands are just too large wait them out. The courts will be pressuring you to settle with constant case management conferences; but if the unbending spouse still will not give in you either have to try the case in court (think $25,000 to $50,000 in legal fees) or you can opt for binding arbitration. Choosing this option will give you breathing room as you will no longer be on the court’s docket and timing is completely within your control.
The bottom line is that if you have a spouse who is not ready; they’re not ready.
Any decision you reach will be skewed their way just so you can settle. Wait them out. Let them want to come back to the table before you continue to try to modify our position just to get things done. That would be called negotiating against yourself. Clients have said “maybe if we go back to them with X they will settle”? It rarely works and all it does is give the other side an advantage.
One of my clients waited 4 years before he approached his wife for a settlement. So if your spouse just wants to fight, let them fight against themselves and just wait it out until cooler heads prevail.
This is a question I am asked so often, I thought an explanation would be appropriate.
Mediation
Mediation is a process where a third party, a “Mediator” helps you and your spouse settle the issues in your divorce. It is the best way to resolve your issues, costs the least amount of money and usually results in a settlement that will stick. Most optimally mediation is used in low to medium conflict divorces and where the assets to be shared are straight forward and uncontested.
The mediator is not there to make the decisions for you; the mediator will help you understand each other’s position and help you reach a compromise that is acceptable for both parties. A good mediator will often make suggestions as to how they have seen things done by other couples or where they see a way through an impasse, but ultimately, the decision is yours. Mediation is not binding so if the results are too biased one of the parties can just walk away without any harm, other than wasted funds on mediation fees. That is why mediation works and is successful; the positions reached are not horrible for either party. I phrase it that way because a good settlement is where both parties are slightly unhappy. Neither of you won or lost.
Sometimes you attend mediation with your lawyers. This happens in higher conflict divorces where the parties cannot easily talk to each other or where one party needs additional support. All of the parties, (you and lawyer, spouse and lawyer and mediator) can be in one room, the mediator can work with the lawyers and the lawyers step out to talk to the clients or the mediator can go back and forth between the parties, each in different rooms, to negotiate a settlement.
Arbitration
Arbitration is used where there is no meeting of the minds by the parties on the issues and they need a third party to make the decision for them. Arbitration is similar to going to court in that each side presents their case to the Arbitrator and then the Arbitrator makes the decision.
In arbitration an Arbitrator is hired, (typically a retired Judge or highly experienced attorney) and each side presents their arguments to the Arbitrator as to why they think their position is the best way to resolve the case. Arbitration is like a trial. Witnesses may be called and testify, under oath, and can be cross-examined. Exhibits are put into evidence. At the conclusion there are summations and the Arbitrator makes a decision. Who should get/pay a certain amount of alimony for X number of years, who should get what assets and at what value and who should assume what debts is presented to the Arbitrator until every issue is decided.
Arbitration is an excellent alternative to a trial in court. With arbitration you have more control over the process which costs you less in legal fees. If you have a trial, the judge may have to deal with more pressing issues (domestic violence/Temporary Restraining Orders) or preside over uncontested divorces while you all wait in the hall. Additionally if you use the courts it is often difficult for the judge to give you blocks of continuous time so a trial can end up spreading over many court dates. All of this is very costly in legal fees.
Arbitration is also a good idea if there is privately owned business involved and where the owners may be expensing non-business expenses to the business (personal travel/entertainment or cell phone use for example). If this is revealed to the court, the court is required to report this to the IRS which could cause tax issues for the business owner and their spouse who typically would have filed joint tax returns.
You typically should ask for binding arbitration; this is where the Arbitrator’s decision is final and binding for all parties. Going through this process when it is not binding seems like a bit of a waste of time. If it is non-binding, and one party does not like the decision they can just walk away and you have to start all over, likely this time with a trial. If money is not an issue (aka more money than brains) this is a way to see how the case might be tried by a court but the emotional toll will be enormous, even if you have money to burn, so if you use this method, make it binding so you can get on with your life.
Arbitration can be used if there are only a few things that you cannot agree upon; you would mutually agree only to deal with those issues and it could be a fairly quick process.
The level of conflict and the parties’ willingness to reach a settlement will ultimately determine if you end up with mediation or arbitration. Start with mediation and see if you can make that work. You would then move to arbitration if there is no ability to reach agreement. The Arbitration Decision or Opinion can be used as your property settlement agreement and once in hand, and you have a parenting agreement, it is fairly simple to finalize your divorce.
I recently worked with a client to assist her in negotiating a settlement of her legal bill for her divorce. Her lawyers were unscrupulous and I have not run into billing practices like this with any other lawyer clients have worked with. They over charged for just about everything; from the amount of time in meetings to telephone calls and even for the billing for the paralegal. My detailed review found over $32,000 of errors on a $90,000 bill!
I do not believe that situations like this are common but I think there are some very basic things you can do to make sure you are paying the correct amount for the services you receive.
Have a conversation with your lawyer and clarify that you will not be charged the standard .1 or .2 of an hour for non-legal work such as an email stating “Got you email I will call you at 4 to discuss”. This is a fair ask in that there is no legal content. Most good lawyers will not charge for this but watch out as the person inputting the billings may just count the number of emails and charge accordingly.
With multiple emails that go back and forth in a few minutes of each other it is also fair to ask to be charged the amount of time rather than the number of emails multiplied by the minimum “correspondence” charge. My client had 4 emails going back and forth and was charged for .8 of an hour at $425 an hour (.2 on an hour per correspondence) even through all 4 emails occurred within 4 minutes.
Also watch your telephone calls and make sure the times match. Get your phone records and sort by the telephone number and check.
Telephone calls and emails are a slippery slope because they happen frequently and usually without much thought as to the cost associated with them. My client was charged $85 for an email to her lawyer “I am here where ru?” sent while she was waiting for her lawyer at the court house. So be careful, and collect your questions until you have a few then send them or make the call.
Another way to manage your legal bill is to be mindful of the interrogatories that are sent to the other side and how yours are responded to. Ask your lawyer how to respond to them (format and length of response) and then do as much of it as you can. If you can type it up, so much the better, as it will be easier for your lawyer to review. Your Case Information Statement (NJ Courts financial disclosure document) is also another area that you can save legal dollars on. Sit with a Divorce Consultant or financial adviser and fill it out yourself.
If you have a high legal bill it may be worth taking a close look to see if your bill is accurate. If your case is ongoing and you suspect errors do this now as it will be easier to negotiate and potentially change billing practices if there is still future work to be done. Once you find errors, provide your evidence to your lawyer and ask for a reduction in the bill. If they do not agree to the reductions you can go to attorney fee arbitration rather than take them to court but I hope it does not come to that.
