"Let him who desires peace prepare for war."
- Flavius Vegetius Renatus
Divorce is one of the most stressful experiences an adult will encounter in life. That's true of most other family law litigation as well. Clients want it over quickly, inexpensively and fairly. That's my goal, too.
This may be hard to believe; after all lawyers make more money in protracted, heavily litigated cases. However, I take the long-term view. Over the years, I've found that happy clients send me new clients. The best way to make clients happy is to resolve their problems with a minimum of emotional and financial loss. Getting it over quickly, inexpensively and fairly is good for the client, and good business for me. Besides---despite what you may have heard about lawyers---we're human. We don't want you to suffer.
Most cases on the Family Court's divorce calendar will be settled without a trial. There are three divorce judges in Honolulu each of whom has three trial days per week. That's about 450 trial days per year. There are 5,000 divorces filed each year and about that many are concluded. If a divorce trial takes a day (and some take two or more), this means that more than 90% of all cases are settled prior to trial. Most other family law matters are also settled, rather than tried.
In divorce cases where there is no emergency requiring immediate court action, the best approach is to try to obtain an uncontested divorce. After meeting with the client, and obtaining the necessary financial information, I prepare a divorce decree that contains all the terms of the divorce such as child custody, support, property division, and debt allocation. This decree is the initial settlement proposal. If the other spouse signs it, then it is a simple matter to process the decree and supporting paperwork through the Family Court. A typical case like this costs $1,000 - $1,500 and takes about ninety days.
Unfortunately, I spend most of my time dealing with contested matters. These typically involve clients in crisis and who need immediate orders from the Family Court. In these cases, I prepare the necessary motions to obtain temporary relief from the court, but I usually also prepare a proposed settlement. I send both to the other spouse to provide a clear choice: Litigate or settle.
Many cases settle shortly after the hearing on temporary orders. When that doesn't happen, the next step is to request a trial date. Getting a trial date is important, because it focuses the other side on settlement. Settlement discussions take on urgency once it becomes apparent there is a deadline, after which a judge will decide. At this point, it is essential to prepare for trial. The best way to settle a case is to demonstrate to the other side that one is prepared to go to trial. Settlement discussions become more productive when the other side realizes what facts and law are likely to be established in court.
Some cases simply do not settle. Emotions run high in family law matters, and the contestants are not always reasonable. Where one side has prepared for trial, and the other has avoided doing so in hopes of a settlement, the side that is prepared holds the advantage in the courtroom. Family law is not a science, however. Each case turns on its own facts and its own unique human factors.
The ancient Roman adage could not be more applicable than to family law disputes. If you wish to settle, prepare for trial.