Chapter 15

Settlement Issues, Options, and Strategy

It is a rare person who doesn’t want to settle his or her divorce issues. In almost every divorce case, both par­ties have a strong preference for settlement versus a trial with the judge deciding the issues. The problem is that each party wants to settle on terms that are acceptable to him or her, and those terms are often unacceptable to the other party. The set­tlement process involves communications and compromises to bridge those differences and arrive at an agreed-upon result in which both parties are somewhat unhappy with the outcome.

What is the best way to settle a divorce case? There is no one-size-fits-all settlement procedure that is the best for ev­eryone. Instead, it is important to know and understand the options, and to select the option that is most likely to work for you and your spouse.

What issues can be resolved by agreement? Does an agreement have to be in writing? How does timing factor into the settlement process? What is the best settlement strategy to follow? This chapter deals with these and related questions.

15.1 What Is the Most Simple, Least Expensive Option for Settling a Divorce Case?

You and your spouse can sit down at the kitchen table, make a list of the issues, discuss options and compromises, and try to reach an agreement on all issues. If you choose this most basic approach, you should each obtain legal advice first. If you obtain legal advice after reaching a tentative agreement, and then change your position on issues based on that advice, that will almost certainly anger the other side and may make settlement more difficult than if you had obtained legal advice first. It is a common mistake to begin discussions before obtaining legal advice and preparing for negotiations.

15.2 What Advice Should I Follow Before Beginning Negotiations With My Spouse?

Make sure you understand the facts (such as financial details) and the applicable law before you begin to negotiate. Mistakes, sometimes serious, are made in divorce cases by people who begin negotiating in ignorance of the relevant facts and the applicable law. Sometimes these serious mistakes cannot be undone. Do your due diligence first. This is important.

15.3 Should I Negotiate Directly With My Spouse?

If you understand the finances and any other facts, if you have obtained legal advice and understand what would happen if you went to court, and if you are the dominant party (the spouse most likely to get his or her way in an argument or dispute with the other spouse), then it probably is in your interests to negotiate directly. If your spouse is dominant and you are concerned that he or she may pressure you into an agreement that is not in your best interests, then you should not negotiate directly with your spouse. Instead, you need an advocate to negotiate on your behalf.

15.4 My Spouse and I Want to Negotiate Directly With Each Other Without Attorneys, but We Have Problems Com­Municating. What Are Our Options?

Your best option may be to hire a mediator. You should hire either a respected divorce attorney or a retired judge who has handled divorce cases. (A non-attorney mediator may be adequate for single issues such as the visitation schedule.) A mediator is neutral and does not act as an advocate for either party. If both parties agree, an attorney or retired judge mediator can explain the applicable law. This explanation occurs in communications with both parties.

The mediator is not an advocate, nor is he or she a decision-maker. The mediator does not function as a judge deciding issues upon which you and spouse cannot agree. Instead, the mediator is a facilitator. The mediator makes efforts to ensure that the communications between you and your spouse are civil and constructive, that you both hear and understand the other’s perspective, and that different options to resolve the disputes are considered.

If you are able to settle issues with the help of the mediator, he or she can draft a written settlement agreement. You and your spouse will be encouraged to review the agreement with your own attorneys before signing.

15.5 My Spouse and I Want to Negotiate With Each Other, but We Want Our Attorneys Involved. What Are Our Options?

You, your spouse, and the two attorneys could meet for negotiation (such a meeting is sometimes referred to as a settlement conference); the four of you could meet with a mediator; or you and your spouse could each hire a collaborative attor­ney and pursue a collaborative divorce.

15.6 What Is Collaborative Divorce ?

Collaborative divorce is a process in which each party hires his or her own collaboratively trained attorney. The attorneys and the parties have a series of meetings (attended by both parties and their attorneys), during which they discuss the parties’ situation, identify values, discuss issues, explore options, and seek agreement.

At the beginning of the process, the parties and the attorneys sign a contract agreeing that neither attorney will file nor be involved in the divorce court case. Consequently, if the collaborative process does not result in a settlement, the parties need to hire new divorce lawyers to proceed.

15.7 Should I Suggest to My Spouse That We Use the Collaborative Divorce Process?

The collaborative divorce process is a good fit for some divorcing couples. To determine if it is a good fit for you, ask yourself the following questions:

First: Are you and your spouse able to sit in the same room and discuss your issues constructively? This is a basic requirement of the collaborative process.

Second: Do you trust your spouse to make full disclosure of all information relevant to the divorce negotiations, even those facts helpful to you? The collaborative process is based upon and requires full disclosure by both spouses.

Third: Are you and your spouse likely to both be willing to make the difficult concessions that will be required to reach a settlement without the pressure of an upcoming trial? In most divorce cases, settlement occurs only when both parties make compromises that they do not want to make. In non-collaborative cases, settlement often occurs in response to an upcoming hearing or trial that forces both parties to consider what would happen in the absence of a settlement. In the collaborative process, the attorneys are prohibited from using the litigation process as a pressure to obtain a settlement.

15.8 My Spouse and I Cannot Communicate Directly in a Constructive Manner, and I Do Not Want to Meet With Him. What Settlement Options Do I Have?

This is probably the most common divorce situation. (Let’s face it, if you and your spouse were great at communicating constructively with each other and successfully resolving your differences, you probably wouldn’t be getting divorced.) In this standard model, the attorneys share information, informally or through the discovery process. One side or the other then prepares a proposed settlement agreement, reviews and discusses it with his or her client, makes whatever edits are needed, and then sends the proposed agreement to the other attorney. The other attorney reviews and discusses it with his or her client, and either accepts the offer, or (more likely) makes a counterproposal. As long as each party responds each time with a concession or compromise, this process will eventually result in a settlement.

This is a flexible process. If the parties wish, they can meet to discuss any issue at any time, they can meet with each other with the attorneys present, or a mediator can be brought in to assist in the settlement process.

15.9 My Spouse and I Are in Agreement Regarding Most of Our Divorce Issues. Does Our Agreement Have to Be In Writing?

Yes, your agreement has to be in writing. Oral agreements between husband and wife are not enforceable.

15.10 My Spouse and I Have Been Negotiating for Eight Months and Aren’t Making Any Progress. What Should I Do?

You should talk with your attorney about alternative procedures for reaching a settlement. You should consider whether the passing of time may resolve issues or otherwise make settlement more likely. If so, consider taking a break from negotiations. You should consider whether it makes sense to pursue a limited settlement on the issues on which you agree, if you cannot reach a settlement on all issues. Finally, if you reach the point at which you want things resolved, and you cannot agree, then instruct your attorney to arrange to have the issue or issues resolved by the judge. Realize that it may take months, or even more than a year in some jurisdictions, to get into court for a hearing or trial, so make your plans taking that delay into account.

15.11 If I Decide to File for Divorce and Have a Trial Scheduled, Can I Continue to Try to Settle?

Yes. Scheduling a case for hearing or a trial is often helpful in reaching a settlement, as it forces both parties to seriously consider what would happen in the absence of a settlement, and it creates a deadline. This often results in both parties being willing to make compromises in order to settle to avoid trial.

15.12 If My Spouse and I Are Able to Settle, Do We Still Have to Go to Court?

No. One of you will still have to file for divorce (if you haven’t already), but your attorneys will be able to submit the necessary paperwork by mail so that you and your spouse will not have to appear in court.

15.13 Is Mediation Mandatory?

In some courts you are required to attend at least an introductory mediation session.

15.14 If My Spouse and I Are Unable to Settle, Will the Judge Learn About What Happened in Mediation?

No, mediation (and other settlement negotiations as a general rule, with exceptions) is confidential.

15.15 What Types of Issues Can Be Mediated or Negotiated?

Nearly all divorce issues can be resolved by agreement.

15.16 How Do I Prepare for Mediation or for a Settlement Conference?

You should have a good understanding of the finances and any other factual details relevant to the issues to be resolved. You should understand the applicable Virginia law, and what would happen if the case does not settle and goes to court.

You should have your attorney prepare a written settlement proposal representing your opening negotiating position. You should consider ways in which you could compromise in order to reach a settlement. You should consider what is important to your spouse, and ways in which a compromise could meet the concerns of both parties.

Spend time analyzing both sides’ interests and positions. Read and think about negotiating. Recognize that your spouse is no longer your trusted ally. It is often difficult for at least one of the parties (usually the one that does not want the divorce) to make the mental transition necessary to recognize that divorce negotiations are very different from the normal discussions that occurred during the marriage when the parties were still partners.

It is dangerous to rely upon your instincts for negotiations. It is better to rely upon your knowledge of the issues to be discussed, your preparations, and your attorney. Recognize that your spouse is almost certainly not looking to you for advice. In fact, he or she probably interprets your advice as self-serving and is primarily interested in what you say because of the clues it provides regarding your positions and intentions.

Many spouses recoil at the idea that he or she is in a negotiation in which what he says, or how he says it, can be detrimental to the outcome that he seeks. There are probably numerous ways in which your divorce is not to your liking, including this. Whether you like it or not, there are probably a number of issues in your divorce that are going to be resolved by agreement, so it makes sense for you to be as effective as possible as a negotiator. Even if your attorney is handling the negotiations, it is important that you understand the settlement issues and dynamics so that you can further, rather than inadvertently undercut, your positions.

15.17 I Want My Attorney to Look Over the Agreements My Spouse and I Discussed in Mediation Before I Give My Final Approval. Is This Possible?

Yes, you should not sign any agreement without legal advice.

15.18 Who Pays for Mediation?

That is typically an item to be negotiated. Many parties pay for the mediation with marital funds.

15.19 What Happens if My Spouse and I Settle Some, but Not All, of the Issues in Our Divorce?

Any issues that you and your spouse cannot resolve by agreement can be decided by the judge.

15.20 After Our Divorce Is Final, Can the Settlement Agreement Be Modified by a Judge?

Your agreement regarding the division of assets and debts and spousal support cannot be modified without both parties’ consent. Child custody, visitation, and child support can be modified by the judge if there is a material change in circumstances.

15.21 Can My Spouse and I Modify Our Settlement Agree­Ment After the Divorce Is Final?

Yes, though to be enforceable your new agreement will have to be in writing, and may have to be part of a new court order.

15.22 What Is a Property Settlement Agreement ?

There are a number of different names for a divorce set­tlement agreement, including divorce and property settlement agreement. Regardless of the title, the agreement typically pro­vides that the divorce will be on no-fault grounds, identifies and allocates the assets and debts, addresses spousal support, provides details regarding the custody and visitation arrange­ments, sets child support, and deals with other issues that need to be covered.

15.23 What Happens After My Spouse and I Approve the Property Settlement Agreement? Do We Still Have to Go to Court?

If your agreement with your spouse resolves all of the issues, then you will probably not go to court. Instead, the attorneys will submit the final divorce paperwork to the court by mail.

15.24 If My Spouse and I Think Our Settlement Agreement Is Fair, Why Does the Judge Have to Approve It?

The judge does not have to approve your agreement regarding property division and spousal support. The judge will review your agreement regarding custody, visitation, and child support to ensure the best interests of your children are being met. In practice, judges nearly always approve divorce agreements.

15.25 My Divorce Is Scheduled for Trial. Does This Mean There Is No Hope for a Settlement?

Many cases are settled after a trial date is set. The setting of a trial date may cause you and your spouse to think about the risks and costs of going to trial. This can help you and your spouse focus on what is most important to you, and lead to a negotiated settlement. Because the costs of preparing for and proceeding to trial are substantial, it is best to engage in settlement negotiations well in advance of your trial date. However, it is not uncommon for cases to settle shortly before trial.