Thursday, March 12, 2009

More Divorce Cases Are Going To Trial

A wise family law lawyer once told me "the best divorce lawyers are the ones that are not going to court." That makes perfect sense. Lawyers get paid by the hour. Nothing consumes more of a lawyers time than a court appearance. Any court proceeding is a terribly inefficient use of time. There is substantial preparation required, and then there is an abundance of idle time waiting around for your case to be called. Remember too, divorce court is a court of equity. King Solomon reigns. There will not be one winner and one loser. For the litigants family law court is an exercise in universal suffering. The big reason for going to court in a family law case is because of that ten to twenty percent unpredictability factor. Sometimes we don't know what the judge will do and we have to roll the dice.

More and more people, clients, journalists are asking me: "Is this tough economy adding to your business?" The answer is yes and no. No, the number of new clients walking through the door has not gone up. Yes, the level of conflict in my cases has gone way up, and that means the "average" cost of a divorce has gone way up. Given that time is money, and I am spending more time on most cases, you could say yes business has gone up. That is assuming every one of my clients can pay their bill!

Before we go any further, let me throw in an important caveat. In family law there are trials, and then are intermediate hearings. Trial is at the end of the line. The big Perry Mason, OJ Simpson moment where a stream of witnesses take the stand, and the participants find themselves in court day after day. Generally, there is only one full-blown trial in a divorce case. However, it takes a while to get that trial date. There is preliminary work to be done in a case before it is ready for trial. It is not uncommon for sixteen, eighteen, twenty-four, thirty-six months to go by before trial. That is a lot of time! To deal with that lag procedures are available for temporary (some courts use the term "interlocutory") court orders. For example, temporary court orders for child custody, child support, spousal support, use of the home, etc. In this article I am talking about the trial (and an increase in the number of cases going to trial).

In days gone by, people were more inclined to compromise, and cases were easier to settle. You got your temporary orders, took them as an indication of what would likely happen at trial, and then settled your case. Statistically, anywhere from ninety to ninety-five percent of divorce cases settled without a full-blown trial. In my practice that number is coming way, way down. I would estimate that twenty-five to thirty-five percent of my cases are now going to trial. That is a huge statistical jump! In an average year I would have one or two trials (to go along with 100, 200 temporary hearings). In the last five months I have had five trials! That isn't just a statistical tremor, it is an outright, building toppling earthquake!

I attribute the jump to the economy. People are desperate and looking for fixes in the worst of places, for example in divorce court. There is no extra money to soften the blow of a compromise settlement. There is no equity in the family residence to complete a buy-out of the other spouses interest, to pay off the debts, to create down payment money for two replacement homes. People are losing there jobs so that they cannot "agree" to pay support like they might have in the past. People cannot find jobs, compelling them to ask for spousal support or more child support than they might have in the past. In short, they are looking to the divorce courts to fill their coffers with money that the bad economy has taken away.

From a different angle, money is more valuable today. By that I mean people are more desperate these days to hold on to what they do have, then to part with it in a compromise settlement. They are not willing to share because they don't believe they can afford to share.

Therein lies the irony. These husbands and wives are spending good money to go after bad. Desperate times lead to desperate measures, and that is what we are seeing in family law cases. The ability to compromise is muted these days by the financial hardships the bad economy has created. The bottom line though, is that more cases are going to trial.

Incidentally, please don't blame the lawyers! We didn't create the bad economy, are we are not necessarily profiting from it. If a person cannot pay their mortgage, can they pay their lawyer? Good lawyers educate their clients to the value of settlement, but the clients have to listen. In times of extreme financial distress the client's ability to hear is affected. It is a good bet that many of the family law lawyers that are going to court are not getting paid, or not getting paid completely. Ask the average family law lawyer where her receivables are compared to five years ago and I bet she will say they are much higher.

Is there a real solution? Maybe not. There is no magic pill to be swallowed so that the bad economy will go away. We cannot snap our fingers and make money magically appear. For the near future, it looks like we will be grabbing our briefcases and heading off to trial.

Please be sure to visit www.hardinglaw.com, the website for the law firm of Harding & Associates, for more information on California family law.

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