• Introduction
  • Custody
  • Child support
  • First legal steps
  • Temporary motions
  • Discovery and depositions
  • Settlement
  • Motions and orders
  • Pre-trial conference
  • The trial
  • Modification
  • Guardian ad litem
  • Using Experts
  • Private investigators
  • Parting words
  • About the author
  • Settlement (Part 1)

    Should discussions take place?

    Clients often wonder whether they should take the initiative to negotiate with their wives. While these discussions can sometimes produce settlements and can serve to improve your relationship with your wife, you should also be careful. If your rapport is such that you are capable of reaching an agreement, I would not discourage discussion so long as you do it in tandem with your attorney. Bear in mind that it can be disastrous to make concessions or cut deals which turn out to be overly lavish or, conversely, grossly unreasonable. These “deals” are ultimately deal-killers. They create expectations, which calcify into intractable positions. Bad blood results if you renounce a deal after consulting with your lawyer and realizing that you gave up too much. Moreover, if you back out of an agreement, your wife may persist in pursuing the putative “deal,” figuring that you agree to it at heart, despite what your lawyer says. In addition to the practical complications described, the litigation fallout from the miscommunication can easily double your attorney fees.

    For the majority of the cases in my office, however, it is a mistake for clients to negotiate directly even when I am “in the loop.” The foremost reason is that there is often no prospect for agreement when you are the father demanding primary or even joint custody of your kids. Typically, this matter is not open for peaceful discussion or negotiation, either because the mom has a visceral proprietary claim to the children and/or because she figures that, if she stands firm, the court will, in the end, give her primary custody.

    Insider Tip

    A partial settlement can be beneficial because it focuses your dispute on the heart of your disagreement, saving you and your spouse time and money. However, you should never allow a partial settlement to undermine your overall goals. For example, let’s assume that the only issues in your divorce are the house and custody of the children. You happen to know that one of your wife’s main concerns is to be able to continue living in the marital home after the divorce, but it is unclear what the judge will do at trial. You, on the other hand, have moved into another home and are indifferent about the matter. Your main concern, in contrast, is a joint custody schedule, which your wife opposes. Somewhere along the way, her lawyer will likely propose to your lawyer to settle the property issue and hear only the custody issues at trial. Although simple, this settlement will undermine your goals; if you insist on a package deal ( i.e. all issues or none), you have more leverage to get what is important to you.

    Nonetheless, the parties–through their attorneys or on their own–are free to settle the case any time prior to the conclusion of the trial, at which point the judge decides all disputed issues. “Settlement” simply means that both parties have agreed to certain terms that resolve all of their disputes. Sometimes, parties settle some of the issues and have a trial only on those issues which are still disputed (such settlements are called “partial”).

    If no property, assets, or children are involved, it may not be necessary to have a formal written agreement. Most couples, however, create a fairly lengthy document. Typically, a settlement agreement will incorporate issues relating to both physical and legal custody, income, property, debt, and spousal and/or child support. Occasionally, cases are settled prior to either party’s filing a petition. Far more common are cases that settle on the day of trial — in some cases even during trial. The settlement agreement has important advantages. If a judge chooses to accept it, it will be incorporated into the Judgment. A reasonable settlement agreement–one that is not entirely one-sided–may allow you and your wife more control over your Judgment.

    Although a settlement, by definition, means an agreement, this deal in fact may not be entirely consensual. A settlement normally simply represents the intersection of each party’s assessment of the best result he/she can achieve at trial. Often, these respective projections are based on fairly reliable information. Most influential, perhaps, are the judge’s views as expressed in this and previous cases, and the applicable law in your jurisdiction. Not all cases settle for such rational reasons, however. Real world factors such as fear of embarrassing disclosures, lack of money for attorney fees, and the hope of eventual reconciliation may significantly contribute to producing settlement. Additionally, people prefer certainty. Unless the judge’s position is known unequivocally, there is some level of uncertainty on both sides. Many clients prefer to avoid the anxiety of wagering their lives on a judge’s decision.

    Additionally there are the factors of time and money to consider. In many jurisdictions, you will wait one to two years for your trial. Meanwhile, both you and your wife’s attorneys’ fees will continue to climb. You may also be interested in settling because in some jurisdictions you may be held responsible for some portion of your wife’s fees. These fees normally increase dramatically as you approach your trial date.


    This online custody guide is adapted with permission from “Civil War: A Dad’s Guide to Custody” (266 pages, softcover) – available in our online store.


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