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:
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COURSE OF LAST RESORT-- A divorce trial should be a course of last resort because it is here spouses make war on one another, and when it is over, they will leave the battlefield with lasting hatred of one another.
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