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Is There an Easier Way?

December 9, 2016

Before I dive into my next case law summary blog, I’d like to take a step back and offer some basic advice for anyone going through a divorce or custody battle. Divorce is complicated and excruciatingly difficult, both emotionally and technically. I have done a lot of these, and there is one question that could really make things easier for so many people: “is there an easier way?” Parties to these cases could really help themselves if they started asking this question at every turn. They should ask it of themselves, of their lawyer, and of the opposing lawyer.

This question should be examined whenever a strategic decision is being made. For example, let’s say that your case is fairly simple and you and the other party are able to talk and come to a resolution for many, if not all, of the issues. When opposing counsel calls you to schedule mediation, ask them, “is there an easier way?” The answer could be, “yes, we can try and work out an agreement over the phone or at an informal meeting.” This simple solution could save the family thousands of dollars if implemented in the right case.

Or, let’s say your case is not at all friendly and you and your co-parent are struggling constantly with joint parenting. I, as the industrious attorney that I am, may suggest a motion for order to show cause to hold them in contempt. That is going to consist of me drafting and filing a motion, proposed order, request to submit, and an affidavit of attorney fees. That is to say nothing of reviewing and organizing evidence and witness declarations. Then we will need to hire a process server to serve everything on the other side. Then, I will try and schedule a hearing, which will likely be denied, and we will be referred to mediation at the Court. That may fail because you both believe the other is at fault for the co-parenting difficulties. The other side will spend their time filing all of the same things against you. When we get to court, the commissioner could say that you both are being difficult and need to work together better. The Court may or may not enter sanctions against one or both of you to get you to be nice to one another. These sanctions may or may not help ease the tension; but either way, the parents are going to be left to co-parent. You are essentially still back at square one. However, if my client asks “is there an easier way,” then I will explain options of hiring a parent coordinator or a special master. Those steps could save oodles of money and could be far more likely to resolve the issues and build a foundation upon which the parties can move forward. It will also give them someone they can return to when new issues arise. After the conversation, if the client says that these ideas will not work, we can certainly go the “order to show cause” route, but at least we explored all strategic options.

On the other hand, if the “easier” way isn’t the best option, the client will get a good understanding of why. Here’s that example: the opposing party may have hit my client and one of the children and perhaps threw objects at a wall. The client is scared and needs immediate protection. In their initial consultation, I advise the client to make a report with DCFS and to file for a protective order immediately. They ask me, “is there an easier way?” That question will open a vital conversation about the importance of protecting the family immediately and why we need to follow through with the procedures for doing exactly that. I may counsel against the “easier” way at that time. However, at the hearing on the issue, and after things have calmed down, my answer may change. I may say, “yes, we can ask for a continuance and get the other party some therapy and see how they do under the new restraints.” If they are successful in treatment and do better, then it may be a case where we can negotiate to convert the protective order into a civil restraining order. I will explain all the benefits and drawbacks of doing that, so that the client can make an informed decision. While the “easier” way may not be advisable at one step, it may become advisable in another step of the case.

So, my advice to anyone hiring or working with an attorney is to get used to asking “is there an easier way?” This is going to open up a strategic conversation about solutions that may not have otherwise been discussed. It really has the potential to open a gold mine of possibilities in the case. This key question should be asked frequently throughout the case.

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