Unfortunately, the traditional adversary system works very poorly when the issue before the court is the breakup of a family. In such cases, hours spent preparing for trial and parading witnesses on and off the stand could be spent much more productively if the people involved would calmly discuss and settle the issues somewhere other than a courtroom.
But once divorce lawyers have taken a case into court, they are required to rely upon the historical underpinnings of the adversary system, and normally have little choice but to follow the same procedures as business and criminal lawyers in getting ready for their trials.
Divorce attorneys will sometimes have the family's children studied by experts to determine how much time should be spent with each of the parents. They may also enlist accountants to examine the couple’s assets and appraisers to evaluate the family business, home, and vehicles.
They often take the depositions of these experts and question each of the spouses under oath in front of a court reporter about their income, what it costs to keep the household running for an average month, and many other personal subjects. They try to develop facts that show that one of the spouses is inept as a parent—or, if that fails, how flawed he or she is as a person. Sometimes they hire a private detective to follow one of the parties in the hope of garnering information about damning conduct.
A year or so after filing a case, the lawyers on both sides will organize their anticipated trial presentations. They may have been discussing settlement for some time, but as their trial date approaches, intensity of settlement negotiations increase.
In more than nine out of ten cases, a settlement is reached before the day of trial. And in an amazing number of cases, the settlement is reached only a few days or hours before the trial is scheduled to begin.
Settlement often comes in an exchange of letters or telephone calls the lawyers. Other times, it will come as a result of a meeting among the lawyers and their clients in a conference room. Many settlements occur in a judge’s chambers—a fancy English name for an office, usually with a private bathroom, next to the courtroom—at a settlement conference scheduled by the court just before the trial date.
But the bottom line is that almost all cases wind up settling, not actually going to trial. Most divorcing couples could avoid all of this legal wrangling and get on with their lives much more quickly and inexpensively by settling their disputes somewhere other than in a courtroom.
And you probably won’t be surprised to learn that the divorce courts are riddled with a number of additional drawbacks—from high costs to disgruntled judges—that underscore why they are unfitting places to end a marriage.