At Bishop, Del Vecchio & Beeks Law Office we always do our best to keep things professional. That doesn’t mean that we won’t play hard ball when we need to. At the same time, we do not subscribe to acting mean and nasty just for the sake of it. Such antics generally increase a party’s attorney fees and costs and are not persuasive to the judge.
If the case is not settled it will be important for your attorney to act ethically and professionally because if your case goes to trial the judge may like or dislike you or your positions based in part upon how your attorney behaved. Whether you must pay the other party’s attorney fees or whether the other party must pay your attorney fees may depend in part on whether you and your attorney acted professionally and took reasonable positions.
How Can I Get My Case Settled?
There are several ways that you can attempt to settle your case. These range from informal to more formal methods. Although in some cases the parties cannot settle each and every issue, the more issues they can settle equals the less issues and arguments that will have to argue at trial (and most likely the more money the parties will save in attorney fees and costs).
As set forth in the mediation portion of our website, it is important that you / your attorney obtain all important information (including confirmation of all community property assets and liabilities) before entering into a binding settlement agreement.
The following are the most common methods of reaching settlement agreements. Such are not exclusive. You may attempt any combination of these methods to reach a final settlement. The bottom line is that it takes both parties to reach a settlement.
1. Party discussions. In cases where the financial issues are not complex, and the parties can communicate in a civil and professional manner the parties can themselves sometimes reach agreements on all divorce and/or other family law issues or at least some of the issues. If represented, the parties can then tell the attorneys what terms they desire, and the attorneys can put together the necessary settlement documents. We generally advise against signing any settlement documents in a divorce or family law case until you have a good divorce / family law attorney draft or at least review such document before the agreements are signed.
2. Informal Settlement Conferences. Sometimes the attorneys and clients will agree to meet to discuss settlement between themselves (i.e. without a mediator or other third-party intermediary). Any settlement terms reached can then be documented and signed by the parties and made into a binding agreement.
3. Written correspondence between attorneys. Some attorneys prefer to submit written letters and/or emails between each other to make settlement offers, counteroffers, etc. The attorneys often go back and forth several times in an attempt to reach compromises based upon their client’s desires. Some attorneys are more professional in such letters than others. Thus, while some attorneys merely set forth their client’s desires and positions regarding settlement, other attorneys use such correspondence as an opportunity to berate the other party. We believe that playing “mean and nasty” in settlement letters is counterproductive, a waste of time, and may eventually expose the client to paying the other parties’ attorney fees and costs. Settlement letters do have their place. It is important to make sure all terms are detailed and unambiguous. However, too many rounds of settlement letters back and forth can be unproductive and expensive.
4. Mediation. Private mediation can be an excellent alternative to reaching a settlement. This can be a bit more expensive since you will be paying both your attorney’s time for preparation and attendance at the mediation as well as your share of the mediator’s expenses. This assumes you have an attorney. You and the other party can also hire a mediator to help you settle your issues if you do not have an attorney.
If the only issues you have is legal decision making / legal custody and/or parenting time, you may want to try the mediation program through the Court’s Conciliation Services (see the Superior court and/or Maricopa.gov websites regarding COVID guidelines and whether such Court mediation services are currently available). However, if you have financial issues the parties may need to retain a private mediator. Private mediators generally charge between $275 to $550 per hour for their time. However, if you hire a skilled mediator who can help you and the other party settle the case you will likely save thousands of dollars in attorney fees and other costs. Mediation is a confidential proceeding (i.e. other than any signed settlement agreements, whatever is discussed during mediation stays at mediation).
5. Judge Pro-Tem / Alternate Dispute Resolution. Another alternative for settlement is Alternate Dispute Resolution (often referred to as “ADR”). You can ask the Court to assign your case to ADR so that a judge pro-tem can meet with you and the other party to attempt to settle your case. The judge pro-tem is not the judge assigned to your case, but rather a family law attorney appointed to do settlement conferences. This settlement conference does not cost you anything for the judge pro-tem’s time. The only down-side is that sometimes it takes 1-3 months for the settlement conference to be scheduled. In addition, the settlement conference is generally limited to 2 or 3 hours (although some judge pro-tems might allow additional time).
Procedural Issues Regarding Settlement Agreements
The main procedural rules regarding settlement agreements in divorce and other family law cases are set forth in Rule 69, Arizona Rules of Family Law Procedure and Arizona Revised Statute Section 25-317. Both the rule and statute provide that written agreements signed by the parties and/or their attorneys (or agreements placed upon the record before a court reporter or the assigned judge) are presumed to be binding. Although there are some situations that a party may be able to contest written settlement agreements after the fact, one needs to have a legally recognized reason (such as fraud), and may assume the risk of having to pay the other party’s attorney fees if such challenge is unreasonable or unsuccessful.
In situations where a settlement agreement is approved by the Court and/or incorporated into a final order or decree, it can even be more difficult to challenge a settlement agreement after the fact. There are also time limitations to making such challenge (i.e. no more than six months from the entry of the order or decree approving the settlement agreement in most cases).
[Side Note: Certain types of orders can be modified later (such as legal decision making, parenting time, child support and spousal maintenance (if there is no agreement that it is non-modifiable). Such modification will first require a “substantial and continuing change of circumstances)].
Because of the difficulty with challenging written agreements after the fact, it is very important that our clients fully understand the terms and agree to be bound before we advise them to sign the documents. We often hear stories where a client felt that his / her attorney (and/or the mediator) ganged up against them and verbally berated them into agreeing to certain terms. That should never happen – period. It is an attorney’s responsibility to advise a client when he or she is taking an unreasonable position, why the position is unreasonable, and attempt to steer the client toward a viable solution. However, there is no excuse for the client to have to deal with an arrogant attorney that they are paying to represent them and who attempts to force them into an agreement that does not make sense.
Rule 69 Agreement
A Rule 69 Agreement in Arizona refers to a legally binding agreement made between parties in a family law case, such as divorce or child custody. Under Rule 69 of the Arizona Rules of Family Law Procedure, agreements must meet certain criteria to be enforceable. These agreements can address various issues, including property division, child support, parenting time, and spousal maintenance.
To be valid, a Rule 69 Agreement must be:
- In Writing: Signed by both parties or their attorneys.
- Made in Court: Stated on the record during a court hearing or trial.
- Recorded and Verifiable: Oral agreements are valid if they are recorded and all parties acknowledge them.
Once finalized, a Rule 69 Agreement is treated as a court order. This means that both parties are legally obligated to adhere to its terms. If disputes arise, the agreement can be enforced in court.
It’s advisable to consult with a qualified attorney before entering into a Rule 69 Agreement to ensure your rights and interests are adequately protected.
Conclusion
It is always our firm’s top priority to lead you toward a fair and reasonable settlement in order to avoid unnecessary fees and costs if such can be accomplished pursuant to terms that are reasonable and that you agree to.
At the same time, it may be important to ensure that we have obtained all relevant and material information regarding incomes, assets, financial transfers, and other information relevant to the case in advance of settlement.
Regarding written settlement agreements, the “devil is in the details”, meaning that it is important to think through “what can go wrong?”, and ensure that our clients are as protected as possible and that future enforcement proceedings are either not necessary or are as limited as possible.
