An offer to settle? Is my lawyer losing trust in my case?

The trial in Jill and Jack’s family matter is approaching.  They have not yet been able to settle their disputes over financial matters and the judge overseeing their court case has advised them that he was “setting this matter down to trial”. Family judges often do that to force the parties to be reasonable and be pro-active about settling their affairs. As a result, Jack’s lawyer has recommended that an offer to settle be made to Jill, emphasizing the fact that the offer is a significant compromise on Jack’s part. In other words, Jack’s lawyer is proposing to settle financial matters for an amount significantly less than what Jacks believes he is entitled to.  Jack wonders why he would do that and is beginning to think that his lawyer may not be advising him properly.

 

In fact, this is really good advice that Jack is getting. The role of offers to settle in a family court proceeding must not be understated, as they can have a significant impact on the dollars you might be able to recoup at the end of the day.  If accepted by your ex-spouse, an offer to settle will end your court case definitely.  This means, among other things:

• No more legal fees to pay (thousands and thousands of dollars of savings);
• You will not have to go to trial (no need to spend an entire week – or more – under stress, telling a perfect stranger about your most private affairs with your ex-spouse);
• No more stress over the legal proceedings (sleep at last); and
• The right for you and your children to live in peace, and finish grieving the end of your relationship. 

If your offer is not accepted by your ex-spouse, then making a « low ball » offer to settle will have the effect of protecting yourself against the high costs of divorce litigation. At the end of a full-blown trial, the judge will have the obligation to consider costs spent by each party in the court proceeding, and to award costs in favour of one party against the other.  This means that the judge will have the right to order one party (usually the party who “lost”) to pay to the other party (the “successful” party) an amount to compensate him or her for the legal fees paid throughout the proceeding.  The judge will look at the offer to settle that was presented before trial. If some of the terms of the offer were more beneficial to the other party then what was ultimately offered by the judge, the court is directed by law to make a cost order against the party who failed to accept this most beneficial offer for the time wasted going to trial. As a result, a “low ball” offer to settle can become very beneficial in the end. 

 

Everything in family court is about being reasonable.  While you may think that you have a 100% chance of success in the position that you are advancing in court, history has shown that, in every single case, at least one of the parties end up disappointed.  Making every possible effort to settle your family issues out of court could mean accepting a bit less than what you think you are entitled to. Most importantly, it could mean finding peace of mind. Often, settlement is a question of perception:  is your glass half-empty or half-full?

 

I need closure!

Jill wants to have the home transferred to her name.  She knows that it is over with Jack and she’s chomping at the bit to build a new life.  She feels that Jack is purposely dragging out the separation process in an attempt to wear her down and get a sweeter financial settlement.  Her biggest fear is to settle too quickly and end up living from pay check to pay check.  

Here are 3 common mistakes people make when negotiating a settlement:

1. Insist on keeping the home you worked hard for or that you like so much
Often, the matrimonial home can be more of a liability than an asset especially when you are living on a single income.  It is important to make a list of all the monthly expenses before making this big decision.  It is also recommended to add 25% to your current monthly budget because with time, you will need extra money to get the roof repaired, a new fridge and stove, a lawn mower, new furnace etc.   In the end, it may make more financial sense to sell the home and move into a smaller, more affordable property such as a condo, an apartment, or a smaller bungalow where the maintenance is taken care of or less costly.  Emotionally, it may also make sense to start fresh in a home more suited to your family’s current needs.

 

2. Get bogged down in the “I want” war
Too many separated spouses fight over possessions they want such as furniture, antiques, and knickknacks while losing the big picture in the process.  As a result, lots of time and money are wasted in petty battles.  Fighting over minor possessions just makes negotiations on the important issues, like the home, parenting issues and support (child and spousal), more difficult and lengthy.  It is important for you to become a savvy negotiator.  Make a list of the things that you absolutely want.  Also include in the list some of the items you are willing to let go.  Then “compromise” on the non-essentials and make it look like a win-win situation!

 

3. Be overly anxious to get closure or be afraid to be ridiculed by your ex
Too many people rush into settlement because they are seeking closure.  Others are afraid to be ridiculed by their ex and do not stand up their ground.  Sometimes the desire for closure or the refusal to speak up means the difference between a comfortable life and a marginal one.  Get involved, understand how the law works, ask questions and make sound decisions.  Remember that a piece of paper will not give you closure. Only time and working on yourself can do that.