The Divorce Tightrope: Settlement vs. Trial

An often heard plea from my clients is, “But I am offering a reasonable settlement that is not being accepted; and now we have to prepare for trial?”  My response is, “Yes, because we are on that tightrope where if settlement of each and every detail is not agreed upon, we fall off the tightrope and fall through space with quicker and quicker speed toward trial.  We need to be prepared.”

The challenge of this dichotomy is that once a divorce trial date has been set, we (lawyer and client) must prepare for trial. Yet, at the same time, we are often negotiating in the hope of reaching settlement without trial.  This state of being is no doubt contradictory and is highly uncomfortable and agitating to the client; however, it is a state of being many lawyers, including myself, understand and are comfortable operating within.

The statistics tell us that most cases settle; it is really a question of when will they settle.  Unfortunately, many cases settle very close to a trial date. Therefore no client nor lawyer should count on that settlement because the big question is, what if it doesn’t settle?  No lawyer can get a case ready for trial when settlement talks break down on the eve of, or very near to, the trial date.

My best advice to a client in this most uncomfortable position is to plan for the worst, meaning prepare your case for trial with the mindset of winning your case in an adversarial proceeding before a judge; but hope for the best, which means to keep your mind open to a resolution in which a settlement is better than your worst case scenario at trial.  It is a rare occurrence for anyone to win on all issues at trial, hence there is a risk of loss. The desire to avoid this risk represents the best chance for a settlement.

Now, back to the plea from my clients: why prepare for trial if our offer is reasonable?   When there is a high level of confidence that a settlement proposal made to the other side is reasonable or maybe even better than the law would provide, but the other side rejects the offer, there is really only one realistic option:  prepare for trial.  Not to do so would be like falling off the tightrope without a safety net or parachute.  No one wants a crash landing; and to protect against such a disastrous result, planning is essential. The goal is to stay on the tightrope yet to avoid catastrophic injury in case of a fall.