Settling Your Divorce & Family Law Case
Summary of Content:
- Hiring the Right Attorney
- How Can I Get My Case Settled?
- Procedural Issues Regarding Settlement Agreements
Hiring the Right Attorney
It is important to hire an attorney that has the experience and skills necessary to do a great job for you regardless of whether you desire to reach a settlement or end up going to trial. Your attorney should first be committed to first trying to settle your case on terms that at the end of the day make sense to you. We unfortunately hear too many stories about attorneys that aggressively push their clients to settle for unfavorable terms. Some of these stories include attorneys that get angry at their clients if they do not agree to terms the attorney thinks should be accepted. This is your case and you make the final decisions regarding what is fair and what is not fair. Your attorney should help guide you and educate you on what is a fair settlement and whether you are taking reasonable positions, but at the end of the day you are the one that must live with the result.
Although it is generally advantageous to settle cases in order to save fees and costs, there are unfortunately some cases where the other side is so unfair with his or her positions that going to trial becomes inevitable.
Some attorneys hate going to trial because they are not particularly skilled in that area. You want an attorney that will try to help you settle your case for the best terms possible, but who also has excellent trial skills if the other side refuses to settle for reasonable terms.
People’s personalities can play a big part in coming to a fair and reasonable settlement. If both parties are motivated to settle and address the proceedings in a professional manner a fair and reasonable settlement can usually be reached. Some people however are just plain bullies. Some of these people have mental health issues such as narcissism that makes it difficult for them to settle on fair terms because they feel like they must defeat the other person. Some people are emotionally hurt due to the other party’s prior actions (such as extramarital affairs etc.) and feel that they need to be compensated financially or otherwise. All these types of personalities and histories can potentially affect the possibility of settling the issues even if they are not legally relevant.
Attorney personalities can also play a part. Some attorneys will essentially adopt their client’s personalities. For example, if their client wants them to be a bully the attorney may willingly play the part. Some attorneys are just plan horrible to deal with even if their client wants to be fair. In such case, the client should assert how they want their case handled or find a new attorney.
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.
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.