Settling your family law matter is a choice that belongs to you and your spouse. It does not belong to your attorney or to his attorney. It does not belong to the judge or to the mediator. Rather, like with all legal matters, the decision to settle is one that must be made by the clients.
But how? How can we reach agreement when we see things so differently?
In order to settle any case, the parties need to have a meeting of the minds; in other words, they must find a way to see eye to eye on the most important and salient aspects of their case. Not every case is one that can be settled even under the best of circumstances, i.e.., where both parties are acting in good faith and willing to compromise. Of course, there are also those cases in which one or both of the parties are not acting in good faith, pursuing an agenda of retribution for perceived wrongs or simply have utterly unrealistic expectations about what they are entitled to. But where the parties are both behaving reasonably, there are ways to increase your chances of reaching an amicable resolution. Here are a few:
Ask your attorney to be realistic with you. Good attorneys exercise client control and manage expectations. Their job is not to tell you what you want to hear but rather to tell you what you can expect. Don’t punish him or her for being honest with you. After all, attorneys are people too and are naturally inclined to want to avoid causing you discomfort or pain.
Be realistic with yourself. Sometimes it is difficult to know what we truly want. Divorce is usually a time of great turmoil and change. You may be re-entering the work force for the first time in a long time. You may be forced to assume responsibilities that have always been the province of your spouse. Regardless of what your future holds, give yourself time to decide what you truly want and try to structure your settlement to give you the best chance of reaching those goals. It does you no good to be unrealistic with yourself regarding what you are reasonably capable of doing given your particular circumstances.
Educate yourself. Your attorney should not be the only one doing the legwork in your case. In addition to deciding what you want, you need to decide how to get there. Talk to professionals other than your attorney to determine what your needs are and how to reach your long-term goals. For example, you might speak to a vocational counselor or a college admissions specialist to discuss what you will need to get reeducated to become self-sufficient or to further your career goals. Meet with a financial advisor to discuss your finances and budget. Having a clear understanding of the real life issues affecting your case will help you to structure an appropriate settlement. It will also help you justify the resolution you need to your spouse, a mediator or a judge.
Don’t let others tell you what you should want. People going through divorce often receive an overwhelming amount of advice from well-meaning friends and family. That information is often third-hand and generally incorrect. Smile, politely nod your head, thank them and then go talk to your attorney. Bad information leads to bad decisions and can inhibit the settlement process. Perhaps more importantly, don’t let society’s expectations or guilt govern your decisions. For example, if you cannot reasonably handle a 50/50 Parenting Plan, don’t ask for one.
Paint with a broad brush. Nowhere is the expression “don’t sweat the small stuff” more apropos than in divorce settlements. Try to avoid thinking only in terms of financial value; think also in terms of sentimental value and meaningfulness. Why fight for the big screen TV if having your old antique bed is more meaningful to you regardless of the relative values? Structure your settlement in a way that is designed to meet your needs even if doing so results in a slightly disparate division of your assets. Try to avoid fighting over percentages. After all, most people overstate the value of their personal property anyway so it is impossible to divide the marital estate with pinpoint accuracy without selling everything. More importantly, if you insist on dividing everything down to the last penny, the chances of resolving your case are slim.
Know your “range” and do the cost-benefit analysis. No lawyer can tell you exactly what a judge is going to do should you take your case to trial. A good lawyer recognizes that, because of the legal standards we work with, every case involves a range of possible reasonable outcomes. What is considered a “fair and equitable division” of a marital estate or in “the best interests” of your child will vary with each individual and depend largely upon factors that are impossible to predict. Your attorney should be able to instruct you as to whether a settlement offer is within the “range” of what the court might do. If the offer is outside of the range, settlement is unlikely. Nevertheless, you must always weigh a settlement offer against the cost — both financial and emotional — of going to court to find out if you can do better.
Only you can weigh the intangible benefit of getting it done. Divorce comes with a very high emotional price tag, both for you and for your children. There is a value to getting it done and over with. However, because this is a value that cannot be measured in dollars and cents, only you can weigh its value with regard to settlement. That said, you should not give away the farm just to get your case over with. You’ll wind up regretting it later.
Remember who you’re dealing with. If there is any chance at all, try to bear in mind that your ex-spouse-to-be was once your best friend. If you have children, try to remember that you will be dealing with him or her for the rest of your life in some fashion or another. You know each other’s hot buttons–try to avoid pushing them.