Why Divorce Court Should Be Your Last Resort

A Funny Thing Happened On The Way To The Courthouse

Divorce CourtIn my many years of practicing family law, I have always advocated to my clients that court should be the last resort. This morning I was in court on a motion that I had filed in a contentious case where the litigants had been in and out of court for over nine years, since their children were very young. A new issue had occurred involving one of the children. I filed a motion based upon the history of this case. In the past, everything had to be decided by the Judge.

I appeared in court that morning with my client and the other side. The former wife’s attorney also appeared. The other attorney said, “I think we can work this out. Let’s sit down for a few minutes before we start arguing this.” Where I practice, on motion day, you don’t go right before the judge, but are asked to meet with a Friend of the Court attorney and/or family counselor to sit down and see if matters can be resolved without the need for the judge to intervene and make a ruling. In this case, we all checked in. We then went into another room and talked for a few minutes. We were able to reach an interim arrangement without the need to go before the Friend of the Court, or the judge. This was a win-win for everyone.

A different day this week, I had a meeting about case where custody is an issue, and where the husband had filed a separate tax return based upon what I believe was a miscommunication between my client and her husband. We reached what I thought was an agreement regarding some of the custodial issues, agreed to name a mediator for other issues, and also agreed to file a joint tax return. The next morning I received an e-mail from my client saying that her husband was adamant about filing separately. This makes no sense at all because the difference between a separate and joint return is several thousands of dollars in savings. I contacted the other attorney and he and I agreed to reserve this issue for the mediator. Too often clients get caught up in the heat of emotion and do things that make no sense at all.

In another situation, there was an agreement and order that the parties would file a joint return and split any refunds. The husband, who had turned the divorce into a very nasty case, filed a joint return and then applied the refund against next year’s taxes. This means that I will have to go to court again because we are talking about several thousand dollars. In this case, the former wife should win, but it means additional costs and attorney fees.

What is my message? By sitting down and seizing the moment, we can often achieve a result that is better than anything you will receive from a judge or other court personnel. Fashioning your own resolution is always best. Playing games and trying to one-up the other by refusing to file a joint tax return, or by filing and then saying there is no refund, just leads to more litigation, costs and attorney fees, where no one wins. Instead of trying to win or show up your spouse or soon-to-be former spouse, be reasonable. The best results are those where couples sit down, or couples and their attorneys sit down, and work things out. Remember, it is better to save money on attorney fees, rather than just battling for the sake of hurting your spouse.

About the Author

Henry S. Gornbein specializes in all aspects of family law, along with mediation, arbitration, and collaborative law. He is the past president of the Michigan chapter of the American Academy of Matrimonial Lawyers, a member of the International Academy of Matrimonial Lawyers, former Chairperson of the Family Law Section of the State Bar of Michigan. He is the past president of the MIPA, Michigan Inter-Professional Association on Marriage, Divorce and the Family. He received the Oakland County Bar Association Professionalism Award in 2004. He has been named as a Super Lawyer in 2007, 2008, 2009 and 2010. In July of 2010, he was appointed to a three-year term on the Oakland County Friend of the Court Citizen’s Advisory Board. He is the creator and host of the award winning cable television show Practical Law, which recently won its 3rd Philo T. Farnsworth’s Award for Excellence. He has also been doing regular podcasts covering all issues regarding divorce and family law on DivorceSourceRadio.com.

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