Is it worth taking your case to trial?
Now, this article needs to be considered individually and each decision needs to be made on a case by case basis. It also needs to be analyzed in relative to your wants, needs, and objective facts at your disposal. Also, the more issues that you have going on, more items are going to be need to be weighed.
Okay, there’s my big disclosure on this article. Look at your situation individually and judge it accordingly. Further, this may be more rant than informational as we just finished a trial where the other side had next to no actual evidence to present the court.
Some cases are pretty cut and dry where one party is clearly the winner and one is clearly the loser. However, some cases are pretty balanced when both parties have the same amount of ammo on each side. Having done this quite a while, everyone at this office has a pretty good handle on objectively judging which case you have after looking at your case and theirs over the course of the first several months. But, there are always exceptions to the general rule (am I right).
All that being said, in a family law case, the court (aka the judge specifically assigned to your case) is going to be the one hearing and looking at all the evidence that you put in front of it. They have statutes, rules of procedure, and prior case law that they have to view your evidence through.
If you are dealing with property that needs divided between the two spouses, you are going to look at Idaho Code § 32-712. That statute pretty much states that the court will generally award each party as close to 50/50 of the community property as possible, unless there are some pretty significant facts that would justify one party getting more than the other. When I say significant, I mean significant. The actual statute has the following factors that the court should look at when making that determination:
- Duration of the marriage;
- Any antenuptial agreement of the parties; provided, however, that the court shall have no authority to amend or rescind any such agreement;
- The age, health, occupation, amount and source of income, vocational skills, employability, and liabilities of each spouse;
- The needs of each spouse;
- Whether the apportionment is in lieu of or in addition to maintenance;
- The present and potential earning capability of each party; and
- Retirement benefits, including, but not limited to, social security, civil service, military and railroad retirement benefits.
If you are fighting over spousal maintenance, you have to overcome a two-part test just to get to that conversation which pretty much boils down to can the party asking for alimony support their reasonable monthly living expenses through employment or with the property that they currently have and are getting awarded during the divorce. If the person asking for spousal maintenance can overcome the test, the court will look at factors similar to the ones listed above to determine how much the asking party should get and for how long.
If the parties are fighting over who should get the kids and when, the court will always determine that issue on what is in the best interests of the children.
The point of this article is that no matter if you are represented by our firm or even going against us, if you have questions in your head about the strength of your case, ask your attorney what are the strength of my case viewed through:
- Idaho Code § 717: child custody
- Idaho Code § 712: division of property
- Idaho Code §§ 704 & 705: spousal maintenance / alimony
There are of course other factors, rules, and case law that need to be looked at. But, if your attorney can’t articulate these things even when it is close to trial, it is because 1) the facts aren’t there for you to be successful, 2) the attorney hasn’t paid enough attention to your case or prepared, or 3) you have not provided your attorney enough facts to put together a comprehensive trial plan. The closer you get to trial, the more solid the answers to the questions/factors should be.
If you have any questions or concerns regarding the strength of your case, please let us know.