Family law is such an emotional and unpredictable area of law. Because of the various personal, economical, and emotional factors that are involved in divorce cases, it is difficult to pin down the “right” path for each family. If a divorce case proceeds to trial and a judge ultimately decides the outcome of a case, there is a clear “right” and “wrong” analysis for the issues before the court. It is a judge’s job to hear all of the facts and evidence presented and then to apply the law as directed by the family code and case law precedent. But what if the parties want to reach an agreement for an outcome that would not be obtained in court? Is it “wrong” for the parties to enter into agreements that are outside the scope of potential outcomes in the courtroom?
Many California divorce lawyers use what a court might do in a particular case as the measuring stick for settlement negotiations. Some attorneys highly discourage their clients from entering into agreements which are outside of the norm. However, courts will apply the family code and case law which only amount to “default” rules. Just as if the parties’ entered into a premarital agreement (commonly referred to as a “prenup”), divorcing parties can decide to avoid the default rules and opt for a different agreement. At Bickford Blado & Botros, we encourage our clients to come up with creative solutions to their divorce case in order to avoid trial.The default code sections and case law are not for everyone. It is impossible to structure a “one size fits all” solution for divorces. Sometimes parties do not believe that the law applied to their case generates a “fair” outcome. For example, the parties may think it is fair to divide their assets equally after a long term marriage without consideration for separate property rights of reimbursement. However, although settlement is encouraged by both attorneys and judges, it is important to ensure both parties are adequately informed regarding their legal rights before they sign off on any agreement.
In order to appropriately weigh the costs and benefits of settlement versus litigation, both parties should sit down with their respective attorneys and discuss their legal rights and likely outcomes at trial. Both parties should also carefully consider the potential emotional and financial cost of litigation.
Please contact us if you are considering a divorce from your spouse, a legal separation, or have questions regarding child custody and visitation. Nancy J. Bickford is the only attorney in San Diego County representing clients in divorces, who is a Certified Family Law Specialist (CFLS) and who is actively licensed as a Certified Public Accountant (CPA). Don’t settle for less when determining your rights. Call 858-793-8884 in Del Mar, Carmel Valley, North County or San Diego.