Janet L. Goehle, Attorney at Law
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Risks of trial may merit negotiation of divorce settlement

A spouse facing divorce can have a range of emotions about the breakdown of the marriage that may include sadness, resignation, anxiety, despair, anger or embarrassment, depending on the circumstances. Some people going into the divorce process feel extreme hostility and even a desire to "win" in court at the other spouse's expense through the traditional, adversarial court trial.

That a court trial is always the best way to divorce, however, is a misconception. In reality, leaving resolution of important issues in divorce to the discretion of a judge involves a level of risk. The bottom line is that there is no way to predict with certainty how a judge will perceive the evidence before him or her or how he or she will exercise the considerable judicial discretion involved in making comprehensive decisions about the legal issues, including child custody and visitation, child support, alimony, property division and more.

In addition, the court process can be long and drawn out, at the mercy of a busy judge's calendar. Litigation can be extremely expensive and private family matters may get a more public airing than the parties might prefer.

Despite these risks, there are times and circumstances when going to court is a better choice than a negotiation process, especially if one of the parties has a history of abusive, controlling or dishonest behavior that might make any negotiation process unlikely to end well, emotionally harmful for the other spouse or potentially making it easier for the less-than-forthright spouse to avoid full disclosure of important financial and other information.

These risks tend to be the exception rather than the rule. Of course, no one is perfect and every divorcing person brings past mistakes and vulnerabilities to the table. The key may be to focus on each party's strengths and needs, as well as the best interests of children if they are involved, and choose a different way to divorce: through an alternative dispute resolution method aimed at settlement, rather than litigation.

Through the process of settling their disputes, the parties may leave the marriage calmer and less stressed than they would have been after litigation. If they are parents, they may develop a better co-parenting relationship that will benefit the kids.

Instead of heading to court, in Minnesota the parties can choose from a variety of alternative dispute resolution methods, called ADR, that involve negotiation, communication and compromise. These processes include mediation in which a neutral third party with training in conflict resolution who helps the parties communicate through impasses and negotiate resolution of the issues in divorce with the goal of reaching a comprehensive marital settlement agreement that will be submitted to the court for incorporation into the divorce decree.

In Minnesota, other ADR options can include using a parenting consultant, a neutral custody evaluator or an early neutral evaluation process, called ENE for short.

Especially when the couple has children, keeping the aggression, stress and adversity to a minimum can benefit everyone involved. In reaching a settlement agreement, neither party is likely to get everything they wanted, but they will have more control over the outcome than they would have in court and both will have skin in the game.

Speak to an experienced divorce lawyer about the pros and cons of litigation as well as of the various ADR methods available in light of the unique circumstances of your family to make an informed choice about how to go forward through the divorce process.

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