0 5 min 2 yrs

Going to court is a challenging process for most people, especially those who are dealing with the end of a marriage or de facto partnership. Here are our top practical tips for achieving success in family law litigation.

1. Litigation is not the final step in the negotiation process. Some people believe that litigation begins after a failed negotiation, and some lawyers practice family law litigation as if this were the case. Instead, see litigation for what it is: a well-structured, rules-based dispute-resolution procedure in which negotiation is critical. According to anecdotal evidence, 90 percent of family law cases are settled before going to trial.

2. Recognize that you are still in the middle of a negotiation. You attempted to work things out between yourselves and between your lawyers, but it didn’t work, and now you’re in court – recognize that the negotiation is still going on, but the tactics have changed. The language has evolved, as has the procedure, but the talks are still ongoing.

3. Keep the big picture in mind. It is critical to have a clear concept of the destination, the end that you are pursuing, and a goal, before embarking on any journey of this sort. Understand what that goal is and tell your lawyer about it. Never tell your lawyer how to conduct their work (this would irritate them), but always tell them what you want to accomplish.

4. Have a plan in place. You’ll need a strategy once you’ve established your goals. Inquire about your lawyer’s proposed strategy in your case. Recognize that fresh conditions may necessitate a different approach. Being strategic does not imply being cunning; rather, it entails acting with purpose and awareness. Having a strategy entails being proactive in gaining and maintaining control of the initiative.

5. Follow the regulations at all times. There are techniques in litigation, just as there are in chess, but the rules must always be followed. Your lawyer will not breach the law or act unethically to benefit you. The court, not you, the client, is your lawyer’s priority. In family law, crucial concerns such as the best interests of the children inform your lawyer’s role. Otherwise, you’ll need to find a new lawyer because your lawyer must always work within the bounds of the law and ethics.

Litigation is a marathon, not a sprint. Recognize that everyone wants you to get to the bottom of your problem as soon as possible. Recognize that the family law system is set up to give you plenty of chances to bring your case to a conclusion. Understand, however, that the system must be fair to all sides; this time must be given to the other side at each stage of the journey to ensure justice and to do what needs to be done at each step. Also keep in mind that the system is under a lot of strain, with limited resources and a huge caseload.

7. Litigation is a sequence of petty squabbles that occasionally culminate in a massive war. Each letter exchanged, each court appearance, each step taken, and each order issued is skirmishes, and there will be many of them. The majority of the time, there is no major combat; instead, the outcome is decided by skirmishes. Your lawyer will tell you what is and is not important; believe your lawyer or find a new one if you don’t.

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8. Settlement necessitates the application of pressure. There can be no settlement without pressure, and litigation puts both parties under pressure to achieve an equitable and acceptable settlement. Different people are capable of handling different levels of stress. Your lawyer’s responsibility is to apply enough pressure to the parties (legally and ethically) to bring them to their senses.

9. be resilient; setbacks will occur. Some people are so afraid of failing and so determined to succeed that they exaggerate their reactions to each real or perceived setback. Perhaps a Registrar has criticized your application, perhaps the other side’s barrister was very eloquent, perhaps that parenting consultant’s report was not what you expected; perhaps that business appraisal has come in too low. It’s possible that your lawyer made a mistake; hey, it happens. It is critical to be resilient and persistent in the face of setbacks (actual or perceived). Nothing worthwhile comes easily, and no fight is won without a few bruises.