Mary and Gary are divorcing.  There was $200,000 from her brother that Mary invested during the marriage that turned into $300,000.

Mary says that the $300,000 was her brother’s money entrusted in her to do investments for him.  Gary says that it was a loan from Mary’s brother and, therefore, the $100,000 increase is community and should be divided 50-50.

Community property law states that all property acquired during the marriage, by either of the spouses, from the date of marriage until the date of separation, is community property and, therefore, each spouse owns half.

How would you decide?  How do the Courts decide who is telling the truth?  Do Judges really weigh evidence?  How much of the way the Court weighs the evidence has to do with the Judge’s perception based on his/her past case experiences?

Would this issue even arise if this matter was handled through a Collaborative process?

In Collaborative, transparency is required and the Collaborative lawyers guide their clients to work as a team rather than in competition.

It is common for a litigation lawyer to be creative with the facts in a way that most “benefits” the client.

However, if you look at the big picture, knowing that trials are at least $50,000 in legal fees; even if she was able to successfully persuade the Judge that this was not a loan from her brother and that she invested her brother’s money for him, that means she would end up with $50,000.

How does that make sense?  Why pay $50,000 good money to possibly gain $50,000 in Court?

Well, my friends, litigation does not make sense.

People get caught up in competition; lawyers get caught up in competition; and in competition, people lose sight of what is important really.

The result was that she lost; the court decided that it was a loan and the increase of $100,000 was community property and each gets half.

But she appealed and probably paid at least another $50,000 for the appeal – and lost again.