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Posted By Kevin Cadora

All too often in family law proceedings, parties and their attorneys allow their emotions to control the direction the case proceeds, which always ends in the same way with the parties' lives and their children's lives in ruin both emotionally and financially while the attorneys sit back and collect tens of thousands of dollars in attorneys’ fees.  What most people do not know and what many family law attorneys fail to tell their clients is that family court is not a court of law where there is always a winner and a loser like in a criminal case or an auto accident lawsuit.  Family court is a court of equity which is founded on principals of fairness, equality and best interest.  Family Court has no winners or losers; just degrees of losing because even if you as a party think you won a custody case or a property dispute, your children, your bottom line, and/or your relationship with the other parent will be negatively impacted by the result regardless of what you may think and/or feel about the outcome.  

Most family law attorneys in California also forget or simply fail to tell their clients that California is a no fault state so a party's conduct during the divorce, other than abuse towards a spouse or child, is completely irrelevant to the proceeding.  This means that your spouse's infidelity, lying or midlife crisis has absolutely no impact on the proceedings unless there was some type of breach of fiduciary duty, which is rare.  Despite this fundamental principal in family law, parties and attorney time and time again bring up issues of infidelity and other non-abusive conduct that only fuels litigation and increases fees because the other side denies the allegations and digs their heels in.  Parties and attorneys also often prepare testimony and declaration that are emotionally charged that contain irrelevant material that judges really do not want to hear or read.  

What is the solution then?   Cooperate, come to an agreement and stay out of court.  As hard as it may be to come to the table and try to reach a compromise, espeically when your spouse has hurt you emotionally, the alternative is flipping a coin and hoping for the best and taking the matter to court where someone who knows nothing about you and your life is going to make a decision based upon a very limited source of information and facts.  It does not matter how many good facts you have or who your attorney is, there is absolutely no guarantees because the outcome in family  court is almost always both sides walking away upset that they did not get everything they wanted and being furious with their attorney in the process.  

There are, however, times when you need to litigate and take issues to court such as allegations or false allegations of abuse in a domestic violence matter, high conflict custody disputes, when one parent wants to move the children out of state or when two experts differ greatly in values of property and there is not compromise to meet in the middle.  A good rule of thumb that we advise clients is only take cases to trial when you have nothing to lose.  Another good rule of thumb is to litigate when the benefit outweighs the cost.  An example of when you should NOT litigate is when it will cost you $20,000 in attorneys’ fees to go after $10,000.  Never throw good money after bad despite what you attorney tells you becuase a year down the road you will be kicking yourself.

The take away from this article is to always consider settlement and cooperation prior to litigation and to follow the sound, objective and unemotional legal advice regarding your case.  If you attorney is pandering to your emotions and pushing for litigatin to make the other side pay, they are providing no service to you because highly charged and emotional cases only results in one winner… the attorneys.  Give us a call to learn more about cooperation versus litigation in family court proceedings. 

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