Over the years I have seen a decided increase in the unwillingness of divorce litigants to compromise. They often view the case from the myopic vantage point of their own perspective, ignoring the possibility that their spouse may have a different perspective. Not even a recognition that the spouse may have a different perspective, let alone an assessment of whether there is any logical basis for it.
“But I’m right. He did this to me. She did that to me. Why should I give in, or compromise, or… fill in the blank?” There are a lot of reasons. First and foremost is the fact that there is very little that is black and white in the law. And even less in family law where judges are given a wide degree of discretion to analyze the unique facts in every case. That means, no matter how right you think you are, there are no slam dunks.
Every case, no matter how strong, comes with risk. There is risk that a judge may not see the case exactly the way you do. And depending on what the judge may see differently, the judge’s view may alter the legal landscape a little or a lot.
There is risk that your spouse will be a much better witness than you expect or, and I know this may be sacrilege, you may not be as good a witness as you think you will be. A successful objection may allow or exclude evidence you had or hadn’t counted on. Trials are rollercoaster rides. Often there are highs, but, just as often, significant low points. You can’t control everything at trial.
Just as important to consider are the high costs of litigation and trial. Trials in the family court rarely proceed on consecutive days and trial days are rarely full days. More often than not, you get three or four hours of the judge’s time. That’s a good day, although you’ll pay your lawyer for eight hours, most of which is hanging around time. And when trial dates are spread over weeks and months, you have to pay your lawyer to continuously review and re-review the file. Trial costs can increase geometrically.
And then, when the trial is over and the judge decides the case, the very real possibility of an appeal, which will keep you in the court system for another year or longer, looms large. Appeals can cost additional tens of thousands of dollars.
Are you scared yet? You should be. You should look at compromise as a more appealing alternative. Although by compromising you are unlikely to get everything you want, it is the rare trial that will get you everything you want, and it will cost you much more. You can limit your risk by doing a cost effective analysis to compare what you’re giving up in a compromise, with how important it really is to you, what your realistic prospects of getting it at trial are, and how much fighting for it is likely to cost.
Whether or not you think your spouse’s perspective has merit, that perspective is part of your case and has to be dealt with. So, don’t dismiss it out of hand. Consider it and consider ways (compromises, perhaps) to deal with it.
Many litigants (and I mean many) have told me “I only want what’s fair.” But fairness is like beauty – it’s in the eye of the beholder. Too many cases go off the track because both parties only want what’s fair. And, surprise! Fairness is vastly different to each of them. Don’t be that case. Do yourself a favor. Consider your spouse’s perspective. Consider compromise.
