After a few months of litigation, many clients start to wonder why their family law case hasn't settled. Even simple and straightforward cases sometimes seem to drag on unnecessarily as attorneys charge more and more legal fees. Here are ten reasons your case may not have settled.
1. Leverage can be more important than fairness
One party might gain leverage from extending the litigation. For instance, in a divorce, if the only thing to divide is $100,000 in a bank account, and each spouse is entitled to half, then it might seem easy enough: each spouse gets $50,000. But by extending the litigation, or threatening to extend the litigation, one side might be able to get more.
Maybe one spouse needs the money right away. The spouse that can wait might only offer $40,000, and the spouse that needs the money right away might accept just to get the money sooner. Time can be an important leverage point.
Maybe one spouse is better able to handle the stress involved in the litigation. That spouse might only be willing to offer $40,000, and the other spouse might accept because that spouse does not want to litigate any more. Stress can make people accept less.
Maybe one spouse is in a better position to pay the continued costs of litigation. The other spouse might have to accept less just to avoid being litigated 'into the ground.'
Maybe one spouse has been ordered to pay all or almost all of the litigation costs. The spouse ordered to pay might accept $40,000 just to avoid having to continue to pay the litigation costs.
Maybe one spouse has been ordered to pay ongoing costs for the other party. That spouse might accept only $40,000 to avoid having to continue to pay the ongoing costs.
Maybe one spouse has personal reasons for wanting the case to be over quickly. For instance, maybe a spouse wants to remarry, or cannot move forward with a new relationship until the divorce is finished. These personal reasons might incentivize someone to accept only $40,000.
2. One side might benefit from delay
In Nevada, the financial community continues until the divorce decree is signed by the judge and filed with the court. This often motivates one party to delay as long as possible. For instance:
Both spouses are equally entitled to any funds that are acquired until the divorce is final. This usually means that the higher earning spouse must continue dividing his or her monthly income with the lower earning spouse.
If one spouse is earning a pension, the other spouse gains a larger and larger share of that pension each month until the divorce is finalized.
A spouse may be entitled to medical insurance coverage that will end upon divorce.
Some government benefits continue to accrue until the divorce is finalized. For instance, a spouse may be entitled to receive half of the divorce spouse's social security benefits instead of his or her own, but only if the marriage lasted ten years. Settlement of many divorces initiated in the eighth or ninth year of marriage are delayed until the ten year mark.
House prices may be rising (or falling), making it more (or less) expensive for one spouse to buy out the other the longer the litigation drags on.
A spouse may be receiving temporary support from the other spouse, or have certain costs covered by the other spouse, until the divorce is finalized.
3. Even trying to settle a case can seem like weakness.
If one side tries to settle too early, they are likely to be seen as desperate to settle. This can make the other side believe it has leverage to extract concessions in exchange for a quick settlement.
Similarly, if one side tries to settle a case too early, the other side might interpret this as fear that something will be discovered during litigation, and motivate the other side not to settle and instead redouble their discovery efforts.
4. Experts take time to finalize their reports.
Family law cases sometimes require the work of experts. These experts include property valuations (for instance, house appraisals, firearms appraisals, or business valuations) and child custody experts (such as child psychologists), and these experts sometimes take a long time to do their work and finish their reports.
The Momentum Law Group has worked with many experts, can approximate how long each will take, and can steer clients to experts that work quicker.
5. Due diligence.
Family law attorneys are generally expected to use due diligence to investigate all the facts involved in a case. Usually this includes getting and reviewing all financial accounts for the past three to five years, just in case there might be something suspicious or wrongful. Due diligence can take months for clients to produce the necessary documents and for attorneys or other staff to review them.
Unfortunately, in some cases, the time and cost involved in performing this due diligence exceeds the likely benefits. Although the Momentum Law Group recognizes its obligation to perform due diligence, it will allow clients to waive this obligation if clients feel that it is not worth the cost.
6. Parties can take a long time to provide documents.
Although most people start their cases with vigor and energy, after a few months the case often becomes an emotional burden that they would rather not face. Many people eventually find they would like to do something else, or anything else, with their time.
But unfortunately family law litigation often requires lots of documents, and the time it takes to round up the documents becomes incredibly tedious and burdensome. It is not uncommon for people to spend weeks or months getting together the necessary documents.
7. Parties can become emotionally invested.
Family law is often very emotional. Many parties have been emotionally hurt by things said or done by the other party or the other party's attorney. Some people can't settle because they feel they should receive not just what they are entitled to, but an additional amount in compensation for the emotional harm. Other people emotionally can't settle because they feel the need to continue fighting - for money, for their children, or for revenge.
Mr. Spradling believes he has an obligation to help his clients see their cases rationally and objectively. He understands that people may have been wronged or hurt, and their feelings are valid. But years after the cases are done, clients regularly thank him for having the calm, rational, objective presence that helped them make the best decisions for their future.
8. Family law attorneys are paid by the hour.
It is an embarassing but true fact that cases in which attorneys are paid a percentage of the judgment settle much sooner than cases in which attorneys are paid by the hour. For instance, in personal injury cases, where the plaintiff's attorney is often paid a percentage (usually 25%-33%) of the judgment, cases are usually settled in a few weeks to a few months. This contrasts with family law cases, which usually take around a year to settle.
The Momentum Law Group is committed to putting its client's needs first. This includes a commitment not to drag out cases unnecessarily just to earn higher fees.
9. Some attorneys are overcommitted.
The Momentum Law Group is committed to taking only as many cases as it can handle.
Not every law firm shares this commitment. Some law firms, especially high volume firms, take every single case regardless of whether it can handle that volume. This can lead to long delays as everyone waits for an attorney to spend enough time focusing on the case in order to be able to make, or accept, a settlement offer.
10. Some attorneys lack the experience or expertise to recognize a reasonable settlement offer.
The Momentum Law Group practices exclusively on family law cases. It does not take personal injury cases, traffic cases, bankruptcy cases, or any other type of case. Mr. Spradling has eight years of experience exclusively litigating family law cases. This provides the experience and expertise to know what a court would likely do and to recognize a reasonable settlement offer.
Many attorneys do not have the necessary experience or expertise. Some of them are simply new attorneys. Others try to focus on another field of law, and only use family law cases to fill the gaps.
On more than one occasion, in order to save his client the cost of going to trial, Mr. Spradling has had to teach opposing counsel about family law so that a case would settle.