Should I Settle My Divorce?
Many paths lead to family court, but only two roads lead out: (1) either the parties reach an agreement; or (2) a judge decides the outcome.
Due to the inherently contentious nature of many family law cases, it is difficult for most litigants to consider settlement. This is especially true in the beginning of the case when emotions are raw and overwhelming. Unfortunately, they may be missing out on a big opportunity because most clients benefit from early settlement discussion and strategies. In the best cases, the result is an early and relatively inexpensive resolution. In the worst cases, you’ve learned valuable information about the other party, and are likely ahead of the game in terms of trial preparation.
Still not convinced? Here are some Settlement Pros and Cons to change your mind:
- Control Over the Outcome: One huge advantage of entering into a settlement agreement is that you know the outcome in advance, meaning the terms of the settlement will be clearly laid out on paper before either party signs anything. This is vastly different from trial, where you will not know the outcome until the Judge files its ruling, which can take up to sixty (60) days. Also, while the whole point of the trial is to influence the judge’s decision in your favor, trial ultimately puts your life in the judge’s hands. Most people understand that Family Court judges have broad discretion, but they do not give a lot of thought to the human aspect of being a judge. Judges are people too. They have good days and bad days. While you have spent years living and breathing your case, over the course of your trial the judge will likely have heard less than five (5) hours of evidence—half of which was presented by the other party. Moreover, you are not the only case on the judge’s calendar—most judges have multiple hearings each day, which makes it easy for the nuances of a case to get lost in the shuffle.
- Setting the Stage for Future Success: If you have children with the other party, chances are you will be dealing with them for many years to come. Reaching an amicable resolution through settlement provides a good foundation for co-parenting success. Even if you go to trial and “win,” the adversarial nature of trial often creates tension between the parties that can fester long after the judge makes its ruling. Unfortunately, this tension can be the difference between healthy co-parenting and a co-parenting nightmare.
- Reduced Stress: This one is fairly self-explanatory. If you have not been through a trial yet, regardless of how well-prepared you are or how strong you believe your case is, trial is a stressful ordeal. By comparison, settlement negotiations are typically very low-pressure because at the end of the day no one can force you to agree to something you are not comfortable with.
- Confidentiality: This is an important point that is often overlooked. Generally speaking, settlement negotiations are confidential under the Arizona Rules of Evidence. This allows the parties to discuss the issues candidly without worrying how their statements may affect their case moving forward. In nonconfidential settings it can be difficult to make forward progress because everyone is too concerned about “saying the right thing.”
- You Will Not Get Everything You Want: By definition, settlement entails compromise. I have never seen or heard of a settlement where one party walked away with everything they were asking for. However, just because you will not get everything you want does not mean that the end result will not be within the lines of what is fair.
- You Do Not Get Your “Day in Court”: This is surprisingly important to some people. For them the case becomes about the principle of the matter. These people are less concerned about the outcome and more concerned about the opportunity to tell their side of the story. Unfortunately for them, settlement involves waiving your right to trial. However, it is important for these people to remember that it is possible to reach a partial settlement. In other words, they can try to settle the parts of the case that are less of a moral priority to them, while still leaving the door open to have their day in court on the important issues.
- Attorney’s Fees Are Unlikely to Get Covered: The majority of family law cases that settle involve each party paying for their respective attorney’s fees and costs. The major exception is when one party has access to significantly more financial resources than the other party. If a party is willing to enter a settlement it is difficult to argue they are being unreasonable. Under A.R.S. §25-324, the reasonableness of the parties’ positions is the key factor (other than financial resources) the Court considers when awarding attorney’s fees.
- Success Depends on Both Parties’ Willingness to Participate: As they say, it takes two to tango. If both parties are not actively and genuinely engaged in the process, settlement negotiations can be a waste of time and money. To avoid this pitfall, it is important to gauge the other party’s interest in settlement before you schedule a mediation, ADR, or informal settlement conference.