Divorce settlement – introduction
Achieving the divorce settlement (resolution) of a family law case is one of the most important tasks for the family law attorney. Most resolutions are achieved through negotiation and settlement. Although cases are occasionally tried or parts of them are tried, settlement is the most common, efficient, and satisfying means of resolution.
This article addresses all of the major components of the settlement process, approached chronologically: initially meeting with the client, gathering the facts, developing an overview of the case, preparing to negotiate, and negotiating the settlement.
The principles and procedures discussed in this chapter also apply to the dissolution of a registered domestic partnership (or the dissolution of both a domestic partnership and a marriage in one proceeding).
First meeting with client in divorce settlementEducating Client
At the first meeting, the client will likely be concerned about both procedures for divorce settlement (e.g., will the client be a major witness in a dramatic trial?) and the applicable substantive law (e.g., how will the property be divided, debts be assigned, and support and custody be determined?). The family law attorney should address both types of concerns.
Procedures for a divorce settlement
Many clients come to an attorney anticipating that the attorney will represent them in the courtroom. Televised trials and popular movies may generate visions of courtroom drama in the client’s imagination. Consequently, one of the attorney’s first tasks is to explain the availability of negotiation and settlement as an alternative to trial.
The idea that the issues can be resolved in an understandable and nonadversarial fashion is crucial to the beginning of the resolution process for the client. The client learns that he or she can resolve the issues directly with the spouse; through alternative dispute resolution with a mediator or other third party; through collaborative four-way meetings that include both spouses and their respective attorneys; or through the attorney’s negotiating with the other spouse, if unrepresented, or with the other spouse’s attorney. This knowledge is often the first realization for the client that a judge need not be involved in the process.
- Substantive Law
The attorney should gather sufficient information from the client to be able to outline the issues in the case and make broad projections of possible resolutions. Among the items about which the divorce attorney should inquire are the following:
- The length of the marriage;
- The facts relating to the date of separation;
- The sources and amounts of both parties’ earned and unearned income and any deferred compensation;
- The community assets and debts, including estimated values;
- The possibility of tracing and commingling problems;
- Whether either of the parties faces any immigration issues;
- The genders, ages, and special needs of children;
- The financial needs of adult children for whom assistance will be provided;
- The anticipated child custody and visitation schedule and potential custody problems
- The parties’ anticipated inheritances and gifts received during the marriage and before separation; and
- The parties’ health and the existence of any health or life insurance policies the parties may have.
In addition, counsel should inquire about whether the parties have previously made any written agreements between themselves and whether they ever were registered as domestic partners with the California Secretary of State
After gathering this information quickly and superficially, the attorney should explain to the client the legal issues that may arise during the period of attorney representation and describe the likely results. The attorney should caution the client, however, that the range of possible outcomes may have to be revised if the information provided by the client’s spouse differs from that offered by the client.
To help the client understand the possible outcomes of the case, the attorney should use the initial meeting to present rough projections of the division of property and debts, based on information provided by the client.
Considering Counseling for Client before and during divorce settlement
Some clients do not want to proceed with an unwanted dissolution and other clients may be emotionally overwrought. The family law attorney should advise such clients to seek outside counseling or divorce coaching both before and during the divorce settlement process. Although a client may be reluctant to engage in long-term counseling, the attorney can explain that short-term counseling or coaching may help the client deal with the emotional issues that arise in a marital breakup and thereby save legal fees. Other client resources include “divorce recovery” workshops and other group approaches.
Different Approaches to a divorce settlement
For some time now, the judicial system has recognized mediation, negotiation, and settlement as preferable to adversarial hearings. The preference for nonadversarial proceedings is, perhaps, especially strong in family law. Under Family Code 271 the court may base the award of attorney fees and costs on extent to which each party’s or attorney’s conduct furthers or frustrates settlement and cooperation between parties and attorneys.
Spouse-to-Spouse Negotiations for divorce settlement
The client may wish to deal directly with his or her spouse to resolve the issues. This method, however, is full of pitfalls. One spouse may be more sophisticated than the other or feel more confident about using the legal process, with the result that there is a “power imbalance.” The spouses may be too upset or angry with each other to engage in a rational discussion.
Mediation for a divorce settlement
Mediation provides a possible solution to the problems of direct spouse-to-spouse negotiations A confidential process in which negotiations between spouses are facilitated by a neutral third party , mediation is often a good alternative when the attorney believes that a comfortable and nonthreatening forum is required for one or both parties to develop a realistic view of potential resolutions for the case. Mediation may also be appropriate for parties who fear attorneys or believe that consulting an attorney is synonymous with beginning litigation. Mediation is not appropriate for couples, however, if there is a serious imbalance in power or knowledge, or if there is domestic violence involved.
If the client succeeds in persuading his or her spouse to participate in mediation, the attorney often remains as an advisor (i.e., consulting attorney) to the client, in which event the attorney may or may not draft a resulting marital settlement agreement. If the attorney does not draft the agreement, he or she will review the draft prepared by the mediator or the other spouse’s attorney.