There are two ways that your divorce case will be resolved, assuming that the case is completed. The first is a trial will be held where a judge determines the outcome of your case on all subjects ranging from the custody of your children to a division of your property. When you think of a family law case this is what most people think of. Attorneys yelling, witnesses crying and a judge banging their gavel as hard as possible before issuing an edict from the bench. It may surprise you to learn, however, that this outcome occurs infrequently.
The far more likely conclusion to your or any other person's divorce case is for the outcome to be determined in a settlement with your spouse. Rather than proceeding to a contested trial you and your spouse will probably come together, despite your differences, and settle your divorce case. With that said, you are likely curious as to how to begin settlement negotiations and whether or not it is worth attempting to settle with a spouse who is extremely "hard-headed."
Should you make the first move? Will you look desperate or weak when it comes to an attempt to settle rather than making aggressive moves to prolong a case to trial? One of the good points of having an attorney available to assist you in a divorce case is that you can have him or she negotiate on your behalf so that you and your spouse do not have to interact any more than necessary. Your attorneys can remove some of the emotion that goes into these negotiations and break the conversation down to only the necessary parts. Many attorneys will counsel clients to not think of a divorce as the break-up of a marriage, but rather as a business transaction. For many people, this is a good way to look at a divorce.
What is your relationship like with your spouse?
For some folks going through a divorce, your relationship with the other person is still ok but there are other factors driving you away from him or her. For others, the relationship has soured to the point where you can't even be in the same room as your spouse. My point is that you need to know the state of your relationship with your spouse before starting negotiations. If you are comfortable with negotiating with your spouse directly that is fine, so long as he/she is as well. On the other hand, if you think that personal interaction with your spouse will hurt your case at this stage it probably bests that you communicate settlement offers to your attorney and allow him or her to do the negotiating for you.
From my experiences, it is probable that very little actual negotiating will occur prior to mediation. Divorces can be so complex and “busy” that you and your spouse will likely be working hard enough during your divorce just to adjust to your new lives that negotiating on the meat and potatoes issue of your case could prove very difficult.
The other issue that you need to keep in mind when it comes to attempting to negotiate with your spouse directly is that you don’t know what you don’t know. Allow me to explain that a little further. What seems reasonable to you as far as a settlement offer may not actually be reasonable at all. Having an attorney by your side (like you will at mediation) will allow you to not only communicate settlement offers but also have the peace of mind that what you are offering isn’t potentially harmful to your or your children.
Settlement offers that are made at the outset of your case are very critical. They will allow your spouse to see whether or not you are serious about the process of negotiating. If you can make settlement offers early and often that is fair your spouse is likely to start nodding their head little by little until you get to a point that you can settle your case. On the other hand, if your settlement offers are overly aggressive and leave little room for your spouse to gain anything he or she will likely spend a great deal of time shaking their head "no." Any attorney can tell you that once you begin thinking "no" it is extremely difficult to get you to start saying, "yes."
Determine if your settlement offers are going to be met with an open mind
In many divorces, the goals of each party are so divergent, so different than a settlement just isn't possible- at least at first. For instance, if you are a father whose goal is to win primary custody of your kids it is likely that you will be met with fierce resistance from your spouse. As such, you can negotiate on many different subjects but that custody issue isn't likely to be one of them until you get into meditation.
My point is that if you and your spouse are a ways apart from one another the potential for settlement negotiations to be fruitful is quite low, unfortunately. Think of negotiations as two people sitting on opposite ends of a long conference table. As each issues settlement offers and concessions, their chairs are moved closer together until (hopefully) the meet in the middle. Well, if you both want to be primary conservators of your kids, have differing views on spousal maintenance and can't decide on whether the vacation home is community or separate property then you won't have much to base negotiations off of.
Why parties and the courts typically favor settlements
With all of this said, it is my position that settling your divorce with your spouse prior to trial is almost always a good idea. The reason is simple: even though you and your spouse may not see eye to eye on much these days, the fact is that you both know your family better than anyone. That includes the judge who will be doing their best to learn your family dynamics during the course of a one- or two-day trial. You and your spouse are in a much better position to know what is in the best interests of your children and how to equitably divide up your property.
The other thing to keep in mind is that you can settle certain issues before a trial and leave others to be determined by the judge. For instance, if you and your spouse can agree to a method to divide up debt and property in your divorce but cannot agree to anything regarding your children, a trial can be had solely on the children’s issues. You would inform the judge of any settlement that was reached, the terms of that settlement and what still needs to be determined in the trial.
Having a settlement on part or most of the issues in your divorce can do you a great deal of good. It not only shortens the length of your divorce, which will save you time and money, but it allows the judge to focus their attention on a few issues. Take note, however, that a partial settlement can sometimes undermine a part of your case that could be perceived at first glance as being unrelated matters. Let’s talk a little about that right now.
Consider a situation where you and your spouse have a potential settlement in place on property issues, yet are far apart on custody issues related to your kids. If your spouse really wants to stay in the family home after the divorce but you do not care one way or the other you may see this as a potential issue that you can resolve and move on from. I think you should be wary of a situation like this and I will tell you why.
If you want to push for primary custody of the kids, your being able to remain in the family home is a huge part of that push. The reason being that judges like kids to be able to have stability and consistency in where they are growing up. If you cede control of the family home to your spouse without considering the long-range effects that could have on being awarded primary custody that could really hurt your case.
This goes back to the point that I made a moment ago- do not agree to things with your spouse without the knowledge of your attorney. Ultimately, yes, it is your case and not your lawyer’s. However- if your attorney were present you would not make concessions like this in your negotiations that could be very harmful to your case. You can back out of informal settlements with your spouse (those not made in mediation) but that could sour the air between you and your spouse and make further negotiations very difficult.
Mediated Settlement Agreement
If yours is a typical divorce it will be necessary to head to mediation prior to ever seeing a judge. Mediation is a process whereby you and your attorney, your spouse and their attorney and a mediator attempt to settle the remaining issues of your divorce. This is done in a mediation session at the mediator’s office. You will be in one room at the office with your attorney and your spouse and their attorney will be in another room. The mediator acts like a ping-pong ball bouncing back and forth between the rooms in an attempt to negotiate a settlement.
What you are attempting to negotiate is called a Mediated Settlement Agreement (MSA). If a settlement is reached on any issue related to your divorce an MSA will be drafted that will put into writing the nature of that settlement. The mediator will draft the document and you and your attorneys will sign it. That agreement will be the basis for the final orders in your divorce, know as the Final Decree of Divorce.
So long as both parties sign the MSA and the final decree it is only a formality at that point to get your case to the conclusion in front of a judge. One attorney will draft the final decree while the other will review drafts to make sure that the decree’s language reflects that of the mediated settlement agreement. While a settlement tends to be more “fair” than not, it can sometimes favor you or your spouse more than the other. This is due to the fact that your bargaining positions may not be equal. If your spouse committed acts of violence against you and your kids, makes much more money and stole money from your community estate, it is likely that you will be able to negotiate a stronger deal when it comes to property and your kids than she will.
These are many of the considerations that I believe you should make in regard to any potential settlement of your Texas divorce case. We will continue this discussion in tomorrow’s blog post by going over the parts of a divorce settlement and what your final orders need to include in relation to the settlement terms that you negotiated.
Questions about family law issues in Texas? Contact the Law Office of Bryan Fagan
If you have any questions about the content that we covered today please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed family law attorneys offer free of charge consultations six days a week here in our office. These consultations are a great opportunity to ask questions and receive direct feedback about your particular circumstances. If you have never spoken with an attorney about your case before I can’t think of a better environment for you to find out more information about your situation.
Our attorneys work on behalf of folks just like you in every family court in southeast Texas. We take a great deal of pride in providing superior results for our clients both inside and outside the courtroom. Thank you for your time and consideration.