As Parties begin the litigation, each Party expects to “win” in the divorce process, and expects the other Party to “lose.”
What is a Win? “Win” is defined as: 1. to achieve victory or finish first in a competition, and 2. to achieve success in an effort or venture. In most cases, divorce is not about finishing first in a competition since divorce is not a race. The Courts in Colorado do not reward the first person to file for divorce. There is virtually no benefit in filing first except surprise and that you will have to pay your attorney to draft certain things first. The one who files first (the Petitioner) may also have more control over the language in the first draft.
As a practical matter, is there any possibility of “winning” in a divorce? “Winning” might be defined as a marriage that worked out — by the time divorcing clients reach us, it is normally too late for that. In the dissolution process, we are often dealing more with “damage control” than winning.
In a typical civil case, there is a Plaintiff (one who sues) and a Defendant (one who defends). One Party receives a verdict from the Court or a jury (a judgment). This is also true in criminal cases. In a criminal case, it is the State (or the District Attorney) versus the Defendant. The Court or the jury finds the Defendant guilty or not guilty.
In a family law case, there is a Petitioner (one who files the Petition) and a Co-Petitioner (if the Parties file together) or Respondent (if one Party is served with the papers). In Colorado, there are no jury trials for family law cases. Dissolution of marriage, legal separation and allocation of parental responsibilities cases are tried to the “bench” — a District Court Magistrate or Judge.
Although a family law case is a civil matter heard in the District Court, whether a Party wins or loses is not as easy to determine. This is in part because family law cases are usually complex and have many issues (parenting time with children, division of property, how to divide debts, etc.).
Can I Win?
“Can I win?” is one question clients always want to know. I ask clients (1) what would you be thrilled to get in Court? (2) what would you be satisfied with? (3) what result would be totally unacceptable? The point is to get clients to think about what equals “success” to them. Of course, everyone would like to have all of their proposals and requests agreed to by the Court. The reality is that virtually no divorce case is a straight up or down win. Whether the Parties are negotiating an agreement or the Court is entering an order, the issues are a series of interlocking pieces with multiple parts. So you might get the specific parenting time schedule you would like but other terms regarding the children are not ones you would have chosen.
What Does Winning Mean to You?
It is also important to understand what winning means to you and what winning means to your attorney. Personally, I want the Court to agree with every argument I make and every fact I try to establish. Ridiculous, I know, but I cannot stand losing anything. As an attorney and a litigator, I want to make the strongest argument to the Court and get the best result for my client.