Family Law

How do you win in a divorce?

By Jennifer Rice, Esq.

As parties begin the litigation, each party expects to "win" in the divorce process, and expects the other party to "lose." As a practical matter, is there any possibility of "winning" in a divorce? "Winning" might be defined as a marriage that worked out -- by the time divorcing clients reach us, it is normally too late for that. In the dissolution process, we are often dealing more with "damage control" than winning.

In a typical civil case, there is a plaintiff (one who sues) and a defendant (one who defends) and one party receives a Court or jury verdict (law judgment). This is also true in criminal cases. In a criminal case it is the State (the District Attorney) versus the defendant and the jury finds the defendant guilty or not guilty. Although a family law case is a civil matter heard in the District Court, whether a party wins or loses is not as easy to determine. This is in part because family law cases are usually complex and full of many issues (parenting time with children, division of property, how to divide debts, etc.).

Win Defined.
?Win? is defined as: 1. to achieve victory or finish first in a competition, and 2. to achieve success in an effort or venture. In most cases, divorce is not about finishing first in a competition since divorce is not a race. The Courts in Colorado do not reward the first person to file for divorce. There is virtually no benefit in filing first except surprise and that you will have to pay for your attorney to draft certain things first (which also means you have more control over the language in the first draft).

Can I Win?
Can I win? is one question clients always want to know. I ask clients (1) what would you be thrilled to get in Court? (2) what would you be satisfied with? (3) what result would be totally unacceptable? The point is to get clients to think about what equals success to them. Of course, everyone would like to have all of their proposals and requests agreed to by the Court. The reality is that virtually no divorce case is a straight up or down win. Whether the Parties are negotiating an agreement or the Court is entering an order, the issues are a series of interlocking pieces with multiple parts. So you might get the parenting time schedule you would like but have to meet the other parent halfway to transport the children.

What Does Winning Mean to You?
It is also important to understand what winning means to you and what winning means to your attorney. Personally, I want the Court to agree with every argument I make and every fact I try to establish. Ridiculous, I know, but I can't stand losing anything. As an attorney and a litigator, I want to make the strongest argument to the Court and get the best result for my client.

For my client, I know that many times the client has to prioritize the importance of the issues to them. At a recent hearing, a client had certain requests regarding the children, child support, maintenance and property. The client was excited after the hearing because the client had gotten what they had wanted regarding parenting time. Although other parts of our request did not turn out exactly as we requested, the client was thrilled because the children's issues were the most important to them.

A typical divorce case might have forty to fifty different issues that can be "won" or "lost" if you consider winning equals getting what you asked for. Of course, at the end, you may feel overall that you won or lost in the divorce process. It is important that you have a game plan with your attorney and know what is likely achievable and what is not.

Full post as published by Colorado Family Law Blog on January 29, 2007 (boomark / email).