Learning about how to how to use the court system to facilitate a fair settlement at the earliest possible opportunity is Step #9 in your divorce strategy education.
The bottom line is your Best Divorce strategy has to be built around ending your divorce lawsuit on fair terms as soon as possible. Beyond the safety of my clients, this is the primary goal in my law practice. I accomplish this goal for my clients through a philosophy that I call “Resolution Focused Litigation.”
Get it? Got it? Good.
But do not be misled. Resolution Focused Litigation is litigation. Litigation means lawyers are taking action. This can be uncomfortable.
But remember, divorce is not comfortable or enjoyable situation for you. Resolution Focused Litigation is all about (often subtly) presenting your spouse with a situation that encourages them to accept a reasonable settlement offer so that your divorce can be over, and your focus can be completely freed to continue pursuing having the best life possible after your divorce.
Why Resolution Focused Litigation is Necessary
Most people prefer to avoid confrontation at all costs and the route of least resistance. It is natural to want to be the “nice guy” or “nice gal” and try to avoid anything involving conflict. This is especially true with divorce.
For many, the first inclination in divorce is to attempt avoiding conflict by offering their spouse what they perceive to be a “fair” settlement to keep things “amicable” before any attorneys are involved.
Why complicate things when you can sit down at the dining room table with your spouse, discuss your differences, perhaps share a cry, and then figure out a settlement on the back of a napkin that one of you can take to an attorney to “make it legal.” By doing it this way you’ll avoid subjecting your family to conflict and unnecessarily spending money on lawyers.
Nice try.Unfortunately, this “extend the olive branch early” strategy rarely ever works when done as stated. Worse yet, despite the noble intentions, this type of divorce strategy almost always backfires and leads to the both people taking more time and money to resolve a sensitive situation that would otherwise be resolved quicker and with less conflict.
Although counter-intuitive, trying to mediate your complicated divorce with your spouse before lawyers, or with lawyers before a lawsuit is filed, almost always creates the conflict, delay, or expenses that you are trying to avoid.
The primary reason for this in most cases is there is a lack of a mutual, time-sensitive incentive for quick and rational divorce decision-making. Without a mutual desire for immediate divorce, there is no mutual cooperation towards an immediate divorce.
Without lawyers being involved, there are no lawyer’s expenses to avoid. Without any divorce lawsuit, there might not be any divorce to resolve/discuss. If your spouse sees no problems to solve from their point of view than there are no problems that will be solved for your benefit.
A Complex Divorce Usually Isn’t that Simple
Are you starting to see the problem? Sure, you have decided you’d like a quick, conflict free, Best Divorce. You know what you want and have carefully designed your Best Divorce and Best Life
strategies to get what you want. All you need to do is sit down and work things out so that your family can move on in the best way possible.
If this is you, I congratulate you on getting to where you’re at now. Unfortunately, the process is hardly ever that simple. If your spouse does not agree with every single step of your new vision of taking half of the money and living a life without them (wouldn’t that be nice?), this is likely not going to be simple and quick unless… you have the proper settlement incentives in place.
You may have decided that divorce is the best option, but that took you a lot of time and soul searching. Your spouse is going to need to go through the same process. It is far easier to come to the conclusion that you are better off with a divorce on your own terms than to learn how to cope with the news that your spouse wants divorce when you’ve never seriously contemplated the idea.
Some people ultimately realize that divorce is the best option, but this takes time. Your spouse will probably not be moving quickly. If they do, it will probably not be in any way you’ll appreciate.
There is the real reality that your spouse is going to feel hurt and make rash decisions out of fear or resentment. Sometimes they will hire an aggressive lawyer and come out swinging. Other times they will shame your name to all of your family, colleagues, and friends. There are endless possibilities.
Although your spouse might deep down be trying to save the relationship, their actions can cause irreversible damage to your family, business/career, and other relationships.
Hopefully none of these “doomsday predictions” will come true.
Others Will Influence Your Spouse to “Investigate”
But, odds are, at the very least, your spouse is going to talk with their close friends and family. These people, some of whom have probably been through a difficult divorce themselves, are going to do what they can to watch out for your spouse. They will probably tell your spouse to be on guard and suspicious.
If the friends and family like you, they will still almost always tell your spouse to at least consult a lawyer to make sure they “know their rights.” If the friends and family never liked you, were always “on the fence” about the marriage, or are jealous, there is no telling what they will encourage your spouse to do during their most vulnerable moments.
Regardless, all of this will create the initial perception that you might be trying to “pull a fast one” with what you perceive to be a fair and reasonable settlement offer.
Most likely, there will end up being more investigation into the terms of your settlement offer that you made before lawyers than if you had made the same offer during an active lawsuit, with lawyers, after exchanging the financial information that you will probably end up exchanging anyway.
So What is the Solution Then?
So is there a way to avoid all of this? A way to a dignified divorce that isn’t like the War of the Rosen’s story? Yes. It’s what we call “Resolution Focused Litigation.”
Nearly all aspects of an amicable divorce you might desire are involved; but the “order of operations” is structured in a way that significantly decreases the likelihood of significant delays, unnecessary expenses, and feeling of resentment over the divorce with your spouse, friends, and family.
Creating An Incentive to Settle is Key
Resolution focused litigation involves creating an early incentive for the other spouse to settle by simultaneously presenting a credible settlement offer and preparing a case to proceed to trial at the earliest available opportunity.
So what exactly does this resolution-based litigation strategy?
Every case is different, but the general concept is to incentivize your spouse to accept a fair settlement early through a strategy that minimizes the damages delay brings you in divorce. This is usually done through taking the following actions:
- File for divorce and “get things moving”: File the divorce lawsuit before confronting your spouse about the divorce and then provide as much financial disclosure to your spouse or their lawyer as soon as possible. Then, keep things moving by setting your spouse’s deposition to take place early on in the case after the exchange of the basic financial information, but far enough into the future to allow a real opportunity to settle your divorce lawsuit before the expenses of the deposition are incurred. If there are other key witnesses that would testify at trial for your spouse, then you may need to also start setting depositions of those people to take place at a time after you expect to be able to discuss a reasonable settlement offer. If experts need to be hired, such as forensic accountants, or vocational evaluators, these people will need to be retained now and your spouse should be made aware they are part of your team. Taking these steps now shows you are serious and doing what you have to do to win in court. Further, these all are things you’ll need to end up doing anyway if your spouse does not settle.
- Exchange financial information and propose a reasonable settlement offer at the first opportunity: As soon as complete or reasonably complete financial information is available you should provide it to your spouse along with a reasonable settlement offer. Then, schedule a mediation or settlement conference to discuss settlement options. Ideally, this mediation or settlement conference is scheduled to take place close enough to the depositions to create a sense of urgency in your spouse to settle to avoid the depositions and associated expense, but long enough before the depositions to make it unnecessary for your lawyers to incur the costs associated with preparing for the depositions if your case settles at the early conference or mediation.
- Make logical evaluations of settlement offers: You need to make sure that you and your divorce lawyer work together to logically evaluate whether to accept or reject a settlement offer (or counter-offer) from your spouse. Usually you should accept a settlement offer that is equal to or greater than what you’d receive in court minus all of the costs (lawyers, loss of income, etc.) to you of going to court.
- Set a trial date as soon as possible: Usually one to two months after the divorce case is filed it is possible to obtain a trial date from your judge. In many jurisdictions, the trial date will be at least four to six months out, and sometimes up to a year into the future. Also, to debunk a common misconception, there is usually not any “verdict” in divorce court at the end of trial. In nearly all jurisdictions, divorce trials are in front of one judge, who usually renders a written decision after the trial. Although many judges rule quickly, I’ve represented clients who have waited up to a year to receive their judge’s decision. This means, from right now, it could take two years to end your divorce through the courts if things go quickly. In other words, the longer you wait to set a trial date the longer you delay this already lengthy and expensive process.
- Continue preparing for trial if settlement fails: If there is no settlement at the early mediation or settlement conference, then continue preparing for the trial you have set while keeping a reasonable settlement offer on the table and adjusting it as necessary. Avoid the temptation to “cancel” or “reschedule” depositions to allow more time for settlement discussions unless the delay is being caused by lack of you providing information. There is no reason your spouse should need additional weeks or months to “think things through.” This is almost always a stall tactic. If your spouse had any intention of ending what is already an expensive and uncomfortable process they would have settled. If there is not an agreement to accept a reasonable settlement at an early mediation or settlement conference, the odds are that your spouse either: (1) will not settle until the last minute because they want to “ride out” their current situation (which might involve you paying all of their expenses) for as long as possible; (2) has not yet felt the financial pain of litigation to the point of realizing they need to settle; or (3) for whatever reason, they never intend to settle with you and are dead set on making you pay to finalize the divorce through the court system. In either scenario, the only right decision to resolve your case as efficiently and quickly as possible is to keep preparing for trial. Delay accomplishes nothing but more delay and spending more money.
The Costs of Delay Require Action
Most people prefer to avoid confrontation at all costs and prefer the route of least resistance. You are correct if you are thinking that Resolution Focused Litigation is going to create some attorney’s fees and costs.
However, these costs are initially minimal, as all that is really happening is a legal assistant in your lawyer’s office will be taking time to schedule future events in your legal case. If your divorce settles, as many do when this strategy is employed, the majority of the costs associated with the depositions and a trial will never be incurred.
The real expense of divorce is the cost of delaying final settlement, especially if the delay is taking place while you are in litigation. These costs come in both quantifiable and non-quantifiable forms.
As to the costs that can be counted, you’ll find that in almost all situations, the financial effect of a lingering divorce is devastating. In many instances, a divorce involves one person paying for the expenses of two households from one set of income while also paying their lawyer, and maybe their spouse’s lawyer. If you were looking for a way to blow through your savings quickly, this is it.
Another large expense of the divorce that many initially underestimate is the effect the divorce has on the operation of a business, professional practice, or management of an investment portfolio. Any venture that requires you to perform at a high level is going to suffer based on the distractions of divorce.
Some of the distractions will be time commitments, but the other, possibly most devastating distractions, include feeling like all of your hard work is going to be split with your spouse or that all of your decisions monitored and even second guessed by lawyers and forensic accountants. It is almost always true that eliminating these distractions correlates with you increasing performance and making more money.
Further, do not underestimate the cost that an ongoing divorce will bring to your family and friends. The longer your divorce lingers, the higher the potential for something to happen that creates irreversible damage. This is especially true with children, even when they are adults. For them, everything part of your divorce that they are exposed to will create a lasting impact for them, and in their future relationships.
Some Short-Term Discomfort is Worth It
Yes, a Resolution Focused Litigation strategy can initially subject both you and your spouse to what can feel like an adversarial environment. However, this period is brief, and is specifically designed to help you avoid the delays and confrontation that will cause irreversible damage to your relationships and finances.
If you adopt a Resolution Focused Litigation strategy the odds are your spouse will quickly forget being briefly uncomfortable about your lawyer’s legal assistant scheduling events that never ended up happening.
Sometimes in life you have to choose between what can seem like to undesirable outcomes. This is probably one of those times. Choose the path likely to create minimal long term damage.
Get this done so you can move on!