Statistically, about 90 percent of civil cases settle out-of-court before trial, but that number may be a little misleading, because it includes suits on sworn accounts and other relatively uncontested civil matters that involve practically no possibility of trial. When it comes to divorce cases, the proportion is probably a lot lower, because many family law issues have little or nothing to do with money. Furthermore, although it is theoretically possible to liquidate family assets, sell them, and distribute the profits between the parties, such a move is usually not in the best interests of the children.
What follows is an overview of low, medium, and high-conflict divorce cases and some of the costs associated with each.
All that being said, some marriage dissolution cases do settle fairly quickly, particularly if the couple had little property, or had a premarital agreement, and the parties are still somewhat fond of each other. There is a very strong joint custody presumption in California, and absent rather compelling evidence that such an arrangement is not in the children’s best interest, such as verified domestic violence allegations, both parents usually have roughly equal rights to the children, in terms of legal decisionmaking and physical access. Furthermore, although California is an income-shares state, the child support guideline amount is presumptively reasonable.
On the property side of the equation, premarital agreements often transform high-conflict divorce cases into low-conflict situations. Although there is absolutely nothing romantic about premarital agreements, which is one reason many couples still do not obtain them, there is nothing romantic about life insurance policies either, and no one would dream of raising a family without such protection.
Absent premarital agreements, about the only low-conflict property situations are couples who have almost literally no debts or property, and such couples are few and far between.
The vast majority of divorce cases in California fall into this middle ground. Typically, there is general agreement on broad principles but sharp disagreement as to the specifics; for example, both parties might sincerely want what is in the best interests of the children, but they may have very different views as to what exactly constitutes “best interests.” Fortunately, the legal infrastructure is geared towards these kinds of cases.
In most jurisdictions, judges refer all contested matters to mediation. According to the Department of Justice, civil mediation saved litigants over $14 million in 2015. In addition to the substantial cost savings, formal mediation has a couple of other benefits as well.
First, since mediation is private and much more informal, these proceedings are generally more civil that divorce trials. This civility helps set the stage for effective co-parenting in future months, years, and decades, which is a much better situation for everyone involved. Second, mediation increases control over the outcome, because instead of a judge or jury dictating terms, the parties collectively decided what is in the family’s best interests. In fact, there is evidence that because of this control, mediation increases voluntary compliance, a feature that is enhanced if either party has issues with authority figures.
The exact procedure varies by jurisdiction, but in most cases, the parties do not stay in the same room for more than a few minutes during mediation, and that helps the parties send settlement offers back and forth with less emotion.
As mentioned earlier, divorce is often an all-or-nothing proposition, at least to a certain extent, because there can only be one sole custodian of the children. Property division proceedings can be divisive as well, particularly if one party digs in his or her heels and refuses meaningful compromise.
Typically, the high-conflict cases become apparent early in the process, and that is a good thing, because mediation is largely pointless in many of these situations. So, to get ready for trial, many attorneys focus on:
Discovery: This is often the most invasive and costly aspect of the divorce process This includes documents, bank statements, calendars, and anything else that may be relevant to the case.
Depositions: Technically, this is a part of discovery. Depositions are costly and often time intimidating.
Motions in Limine: The trial goes a lot smoother if the judge makes evidentiary rulings in advance. Settlement is theoretically possible at any time, and many divorce cases have settled quite literally on the courthouse steps or as the judge is gathering potential jurors.
Regardless of the level of conflict in the case, you may need an experienced family law attorney to protect your legal and financial rights in divorce proceedings.