The Divorce Settlement Conference

A divorce settlement conference is a meeting where the spouses and attorneys work on the terms and conditions of property division, alimony, child support, and custody and visitation. They negotiate and find compromises on these issues because through compromise and negotiation the parties attempt to avoid a trial.

Depending on the jurisdiction, a settlement conference may be court ordered or voluntary. A settlement conference is a collaborative effort that is a form of alternative dispute resolution, and it may involve an element of mediation by an outside party.

Only a tiny fraction of all divorce cases ever go to trial in the United States, but those spouses who end their marriage in a court battle usually part ways with a lasting hatred of each other that makes effective divorced parenting all but impossible.

In a divorce, even though lawyers prepare for trial as a tactical maneuver, they continue to search for a settlement. Preparation is part of their strategy because divorce negotiations often involve jockeying for the best position.

Reputable divorce lawyers always work for a settlement rather than a trial because going to trial escalates the cost of a divorce exponentially and also introduces the element of surprise. Good lawyers make their best efforts to settle their clients’ cases without a trial. In fact, in some jurisdictions (such as California), they are required to do so, and they can be sanctioned if they don’t.

Reasons to Settle

In a settlement conference, neither spouse enjoys a greater or lesser right to marital or community property, and neither is placed in a superior or inferior position. The settlement does not crown a winner.

According to Helene L. Taylor, a divorced San Francisco Bay area divorce consulting attorney, "the top three reasons divorcing spouses embrace settlement conferences are 1) exhaustion, 2) expense, and 3) control".

Control by spouses means flexibility in the outcome. “Going to trial means surrendering control of your fate to a Judge who is required to strictly apply state laws and procedures. If a case is settled the spouses remain in control over the outcomes and in states like California, you can negotiate a settlement that doesn’t adhere strictly to California’s family laws and procedures,” says Taylor.

Moreover, negotiated settlements are normally more agreeable to the parties and less likely to be challenged later.

Settlement conferences are voluntarily. If a party participating in a settlement conference feels pressured, he or she can withdraw and go to trial. However, divorcing spouses can save money, decrease stress, and spend less time tangled in the barbed wire of a divorce proceeding by meeting with each other in a settlement conference. These conferences give the parties a chance to gather the opinions and assistance of experienced family law judges and attorneys. Sometimes divorcing spouses negotiate settlement agreements through direct communication, indirect communication through their attorneys, and collaboration.

The Spirit of Compromise

When spouses sit down to negotiate, both must remember to keep their emotions in check, and then the path towards resolving the divorce becomes more seamless and less bumpy. Open communication during the settlement conference and in between meetings keeps things moving forward.

A willingness to compromise provides both partners with a platform to negotiate and reach accords that both accept. Compromise means that neither spouse is completely happy but both spouses can live with the outcome. A settlement meeting gives the spouses an opportunity to hash out details of a divorce without the pressure of a court issuing a ruling at the end of the day. A complicated divorce may require several settlement meetings. Any prior meetings are beneficial since they become stepping stones toward settlement.

Depending on the jurisdiction, before the conference each party files a brief outlining the facts of the case, and the arguments they intend to make, an itemized list of relevant financial information and the requested settlement agreement. The attorneys may meet with one another either before the conference or at the beginning of the conference to discuss possible settlements. In mediated settlement conferences, the parties follow the mediator's procedures. Typically, both parties meet and present their sides at the beginning of the conference. The mediator may then separate the parties and examine the weaknesses of their arguments, potential liabilities and possible outcomes. Parties may then begin to negotiate potential settlements and remain at the conference until either a settlement is reached or until the mediator feels that no settlement is possible. In the latter case, the conference is likely to last all day.

In a judicial settlement conference, each party presents his or her side and the judge may ask questions based on the law. The parties may remain in the same room the entire time or the judge may separate the parties. Judicial settlement conferences are frequently more law-oriented. The judge will be less interested in the facts of the case than she is in what the law says about the facts. These conferences are much more similar to a trial than conferences with a mediator. However, no witnesses are called.

If the parties achieve settlement during the conference, one of the attorneys or the mediator drafts the settlement agreement, and the judge reviews the settlement agreement and signs an order. The settlement then becomes binding. Occasionally, parties are only able to settle some matters. For example, they may come to an agreement about child custody but not about division of property. In these cases, the partial settlement is binding but a judge will consider the other issues at trial.

Steps to Remember

Here are some suggestions that may improve the chances of settling a case during the conference:

  • Identify disputed issues before the conference. Generally four overarching issues can snag a divorce, legal separation and the dissolution of a domestic partnership -- child custody and support, alimony and property division. A party must know what they are and ideally, how he or she wants to resolve each one. Identifying ideal outcomes and bottom lines for each of the issues becomes an agenda’s action items.
  • Understanding how the law is applied makes it easier to solve an issue. For example, understanding that child support is calculated using the jurisdiction’s child support guidelines makes it easier to reach an agreement. Accepting that the guideline is the appropriate amount may make it easier to negotiate deductions used to calculate the actual support obligation.
  • Calculate the cost of going to court. Attorney fees, expert witnesses, lost wages for time spent at trial, miscellaneous costs and any other fees or costs – all are part of the bill for divorce warfare. Other costs such as the toll a trial could take on health and family are harder to compute. Being able to weigh settlement offers against the possible costs of going to trial makes it easier to determine whether to accept or reject an offer.
  • Save the bottom line for the final hour. No one should ever start negotiations with the bottom line. The spouse is probably aware of the same rule of thumb and will use it, and some people need to engage in the offer and counteroffer process in order to believe they negotiated the best deal.
  • Be ready for a little give and take. Divorcing spouses compromise during settlement conferences. Each spouse often accepts something less than they might receive at trial to avoid the risks and cost associated with going to court. In anticipation of a settlement conference, it is a good idea to identify areas open to negotiation and those set in stone.
  • Be patient. Settlement conferences can last a few hours or days. They can be heated and arduous. Offers and counteroffers can be exchanged ad nauseam and nerves become stretched. But, even the worst settlement conferences can lead to satisfying settlement agreements. Patience is its own reward.
  • Stay the course. A party should make his or her best efforts to prepare for and participate in the settlement conference. The settlement conference gives the parties a final opportunity to settle before going to trial, and it is typically scheduled 30 days before trial. Judges are especially likely to order these conferences when child custody is in dispute because they allow parents to come to an agreement they can both tolerate.

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