Nov. 1, 2013

Tempe Family Law Attorney Shares Views on Finalizing Divorce Cases Without Trial

Submitted by Attorney Douglas C. Gardner

concept of section of property after divorce.I have been involved in so many divorce and family law cases, and they have all be unique and different in many ways, but have also followed patterns and had consistent issues that arise in many cases.  One division of the cases would be those cases that my client and I have been able to settle or resolve through mediation or informal settlement discussions, and those cases that have been required to proceed all the way through trial.

While I as an attorney enjoy both types of cases, particularly the challenge of litigation and the adrenaline of the formal court hearing, I have learned over the years that the majority of my clients do not enjoy any part of the final divorce hearing.  The divorce hearing often causes both parties to testify about the worst events of the marriage, and to point out all of the flaws of the other party.  This of course is not conducive to divorces involving children as these parties are then expected to communicate and get along well enough to co-parent the children after having just verbally annihilated each other in front of the Judge.

There are many benefits to settling a case.  First, settling a case will cost much less money than proceeding to trial.  Trial, trial preparations, and even protracted settlement or mediation can significantly increase the cost of a case.  Second, settling a case will allow the parties to finalize the divorce much sooner.  A divorce in Arizona can be finalized any time after the 60 day “cooling off” period has expired, which is 60 days after the divorce papers were served.  In many cases the parties can reach an agreement sooner, and the Court then signs the documents shorlty after the passage of the 60 days. On the other hand, cases that proceed to trial may take six months to a year or more to get resolved.

Perhaps the primary benefit of settlement is that both parties get to craft a result that they can live with.  I cannot say that both parties get a result that they are happy with, but often both parties are equally unhappy with the results but both parties know that they could have done worse at trial.  A trial judge will often divide property with a proverbial chain saw, giving each party a rough one half of the assets.  The Court does not have the time to go through item by item and make a specific division.  The parties can go through room by room in a house and divide furniture, appliances, memorabilia, and other assets in a much more appropriate way than a judge can, as the Judge does not know the parties and knows very little about the wants and needs of each party.

Trial is generally required when one or both parties are unwilling to make concessions.  The Court is then required to hear the positions of each party, and enter a ruling which is usually somewhere in the middle of what each party wanted.  However, while this is in the middle, it is usually less pleasing to both parties.

This brings up another advantage to settlement, especially in cases involving children.  By settling, both parents are much more likely to follow through with their own agreement that they themselves negotiated and agreed to follow, as opposed to following orders that a complete stranger in a black robe has shoved down their throats.  Often, cases that proceed to a trial involving children are much more likely to return back to court months or years later for modifications than those cases in which an agreement was reached.  Additional agreements may be needed later to modify child support, parenting time, legal decision making, and other important issues related to the children, but having reached an agreement in the original divorce, the parties are much more likely to work together to reach an agreement to subsequent changes.

Once an agreement is reached, it should be reduced to writing and signed by both parties.  The terms of any divorce need to be included into a Consent Decree or other Decree or final order.

Parties should be careful reaching agreements subsequent to a divorce regarding child support, as child support can only be changed by a court order.  Any agreement regarding a change to child support should be submitted as a stipulated (agreed upon) order and signed by the Court in order to be effective.  Other agreements beside child support should also be entered as orders so that they can be enforced by law enforcement should the need arise.

If you are involved in a divorce, legal separation, or annulment case or other family law case, and if you have determined that you need experienced legal representation, please call 800-899-2730 and ask to speak with Douglas C. Gardner, or visit our website at