Generally, I am in favor of settling cases amicably, when ever that is possible. There is a saying among lawyers and judges that a bad settlement is often better than a good decision from the court. In part, this is because it is impossible for the court, after a contested trial, to draft an order that is comprehensive enough to apply to the minutiae of every day life.
For example – when parents divorce, the court will enter an order which grants custody and parenting time. Often, the courts will be somewhat specific, for example, indicating that parenting time is every other weekend from Friday after school through Sunday at 6:00 p.m. Additionally, the courts will typically grant parenting time on alternating holidays, during school breaks, and during the summer.
The problem is that in real life, it is often difficult to adhere strictly to a parenting time schedule. Parent’s schedules can change. Children’s schedules can change. Unexpected events happen. My experience is that it is almost impossible to draft a comprehensive order that takes into account all possible contingencies. Necessarily parents have to cooperate. I think this post-divorce cooperation can be enhanced if the parents can cooperate at the time of the divorce. I think that if parents bring issues like custody and parenting time to trial, their ability to cooperate post-divorce is diminished.
Now, there are valid reasons why some parties cannot cooperate. There are valid reasons why some cases need to be brought to trial. But, with effective representation, I think that most Minnesota divorce cases can and should be settled. Many Minnesota counties are using the Early Neutral Evaluation process to resolve cases, and while I have some problems with the way it works, generally speaking I think it is a good thing. (My biggest problem with the ENE process is that if there is no settlement, the evaluators are expected to give an opinion about the likely outcome if the case goes to trial. In my view, this is practicing law – it is applying a legal analysis to a fact situation and giving counsel based on the legal analysis. The problem is that in order to practice law in Minnesota, one needs an attorney’s license. Not all of the evaluators are attorneys.)
More about this in subsequent posts.
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