An estimated 95% of all divorces, including those that are simple, complex, friendly and contested, are settled without going to trial in California.
Most good divorce attorneys will make their best efforts to settle their clients’ cases before going to trial. In fact, it’s required, and attorneys can be sanctioned if they don’t.
The reasons cases settle vary but in my experience the top three reasons are:
- Exhaustion – divorces are mentally, physically and emotionally draining so people often settle because their health is suffering or they’re ready to improve the quality of their lives by ending their divorces.
- Expense – complex and contentious divorces can be extraordinarily expensive. It isn’t uncommon for a complex but somewhat ordinary case in the San Francisco bay area to cost at least $40,000 each to resolve. Fees easily rise with attorneys, court costs, forensic accountants, custody experts, business valuators or appraisers. In contentious cases the costs can be tenfold. I recall a clients’ spouse spending $400,000 in attorney fees and costs in an attempt to prevent his wife having access to his business records. He lost twice – $400,000 wasted and documents ordered produced.
- Control – 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.
Spouses may negotiate their settlements agreements through direct communication, indirectly through their attorneys, in mediation through the collaborative divorce process or during a court sponsored settlement conference.
In many California counties court sponsored settlement conferences are required before the parties to a divorce, legal separation or dissolution of a domestic partnership may schedule their case for trial.
In other counties, where court sponsored settlement conferences are not mandated, couples may still choose to voluntarily participate in a court sponsored settlement conference (usually at no fee).
Court sponsored settlement conferences provide divorcing parties with the opportunity to save money, decrease stress, and spend less time entangled in divorce proceedings. They also often offer divorcing parties the opportunity to gather the opinions and assistance of experienced family law judges and attorneys.
In counties like Marin County, California, divorcing couples may participate in impromptu settlement conferences with the Judge or Commissioner assigned to their case or in Bench Bar conferences.
Bench Bar conferences are settlement conferences facilitated by two attorneys and a Judge Pro Tem (an attorney who has been appointed to serve temporarily as a substitute for a regular judge). The Bench Bar panel provides opinions about the strengths and weaknesses of a case and proposes solutions in an effort to help the parties reach a settlement. The panel is neutral and cannot make any binding orders, but it isn’t uncommon for divorcing spouses to feel pressured into settling. If you are participating in a settlement conference and feel pressured, remember that you do not need to succumb to the pressure and can try your luck at trial.
In other counties like Santa Clara County, California, Judges Pro Tem usually facilitate the court sponsored settlement conferences. The conferences are somewhat informal and sometimes awkward because they are held in public spaces with strangers milling around.
In Alameda County, California, settlement conferences are usually facilitated by the Judge assigned to the case. They can be held in the Judge’s chambers with only the attorneys present – unless a client is self represented. Settlement conferences facilitated by the Judge who will also be the trial Judge if the case is not settled can pose a variety of problems. For example I recall an Alameda Judge telling me that if my client did not settle and chose to go to trial, she would lose because the Judge had decided he was going to rule against her. He did this without much information about the case. My client chose to settle.
If you will be participating in a court sponsored settlement conference, here are some suggestions that may improve your chances of settling your case during the conference.
1. Identify the issues in your case before arriving at the conference.
There are generally four overarching issues in California divorces, legal separations and the Dissolution of domestic partnerships. They are child custody, child support, spousal support and property division. If your intention for the settlement conference is to settle all of the issues in your case, you must know what they are and ideally, how you would like to resolve each issue. Identifying your ideal outcomes and bottom lines for each of the issues before the conference is recommended.
2. Understand how the law affects your case.
It’s often easier to settle particular issues if you are familiar with your state’s laws and how they apply to your case. For example, if you understand that child support is calculated using the legislature’s child support guidelines and it is rare for Judges to deviate from guideline child support, it may be easier for you to reach an agreement. You may decide that guideline child support is the appropriate level of support in your case and the only related issues to negotiate are the time share, incomes and deductions that should be used to calculate the support.
3. Know the estimated costs of trial.
In negotiations it is important to know your risks and what you stand to lose if you don’t settle your case. To determine your estimated costs of trial, take into consideration any attorney fees, expert fees, miscellaneous costs, lost wages for time spent at trial, and any other fees or costs you anticipate incurring. You also may take into consideration other costs such as the toll a trial could take on your health and family. Being able to weigh settlement offers against the possible costs of going to trial can make it easier to determine whether to accept or reject an offer.
4. Know your limitless potential.
Once you understand your state’s family laws, you may think your negotiations are limited by law. Generally speaking, in California this isn’t true. You and your spouse can agree to a divorce settlement that awards property, support or other rights that you aren’t entitled to receive by law. For example, even if you aren’t legally entitled to receive spousal support your spouse can still agree to be legally bound to make support payments.
5.Save your bottom line for the final hour.
There are many books on the subject of negotiating that will tell you you should never start negotiations with your bottom line. In my twenty years of experience, I have found this to be rather sage advice for a number of reasons. First, your spouse is probably aware of the same rule of thumb and will use it. Second, some people need to engage in the offer and counteroffer process in order to believe they negotiated the best deal. If your spouse is one of these people and you begin with your bottom line, he or she may be unwilling to settle unless you give something up.
Even if you doubt your spouse or partner’s ability to negotiate an acceptable settlement agreement, make your best efforts to prepare for and participate in the settlement conference. To the best of your ability set your emotions aside and be determined to use the conference to move your case forward. While is is ultimately your goal to settle the case, you also can use the settlement conference to learn more about your spouse’s positions and opinions, which can help you if you don’t settle and go to court.
7. Be ready for a little give and take.
It is common for divorcing spouses to compromise during settlement conferences. Each spouse often accepts something less than they might receive at trial because they want to avoid the risks and cost associated with going to court. In anticipation of your settlement conference, take some time to determine if and how you may be willing to compromise and identify any issues you believe are nonnegotiable.
8. Be patient.
Settlement conferences can last a few hours or days. They can be heated and arduous. Offers and counteroffers can be exchanged ad nausea and your nerves can be tried. But, even the worst settlement conferences can lead to satisfying settlement agreements. So exercise patience with your spouse or partner and the process. Bite your lip if you have to and dig deep to do whatever you must to make the most out of the time you spend in your settlement conference.
If you’re headed to a settlement conference, and would like my help understanding your legal positions, identifying your options, and developing a negotiation strategy, schedule a consulting session below.