Getting to the finish line in your divorce involves resolving all of the issues. When you have children the issues are custody, visitation, child support, spousal support and dividing up your assets and debts. If you don’t have children, it is resolving spousal support and dividing up your assets and debts. Your option is to either find a way to reach agreement with your spouse to resolve these issues or, if you are unable to do so, have the Court make the final decisions. Today’s blog focuses on considerations involved when a couple decides to make these decisions themselves. When a couple mediates their divorce the entire focus of the mediation is preparing the couple for settling their case. The couple first gets educated on the law and the issues, then works together to put together an inventory of their assets, liabilities and income situation, and exchanges documents to confirm values, etc.
When couples settle their divorce they maintain the ability to make these important decisions for themselves. The settlement portion of the process involves considering how the Court might handle things, considering each party’s sense of fairness, considering the needs and wishes of each couple, providing reality checks when needed, brainstorming the myriad of options available, and considering the benefits of avoiding the costs and challenges of litigation. Let’s dive a little deeper into some of these considerations.
Considering what the Court might do, or “going by the book.” Many couples just want what the Court would determine to be fair. They are seeking some guidance as to what the Court might do, so they can avoid actually having to go to Court and instead just agree to terms that are consistent with what might happen were they to go to Court. When I mediate I work to educate the couple on the law applicable to their matter. Were you to involve a Judge in deciding your matter, they would consider the applicable law, and then make decisions presumably consistent with the law. It makes sense to educate couples who are seeking to avoid the Court with an understanding of how it might be handled if using the Court.
While there are issues that are pretty straightforward and easy to foresee how the Court would decide them, there are many issues that give the Court wide discretion and thus involve a wide range of possible conclusions. Seeking to settle issues that have a wide range of possible outcomes might involve assessing what the likelihood might be for the varied potential outcomes. For most issues the mediator can let the couple know the general ballpark of what the Court might decide and have that for the couple to consider as they work through the issues. When dealing with gray areas of the law or dealing with wide ranges of potential outcomes sometimes it is helpful to get extra input from consulting attorneys who can advise further on likely outcomes were the couple to decide to litigate the issue.
When negotiating settlement the couple can typically get sufficient information to understand how a Court might decide things and can use that information to guide them to an acceptable settlement of the issues they need to sort out.
Each Party’s Sense of Fairness. As I mentioned above, for so long as a couple keeps their matter out of Court they can work together to come up with terms that they both find acceptable. Their sense of “fairness” may be governed by what the book has to say as mentioned above, or it may be something completely different that is not based on the law. I work with many couples who have a different notion of what they feel is fair in their divorce compared to what the law states is fair. There are couples who might have kept their finances separate during marriage and agree that they should each receive their own stuff despite knowing that following the law would have a different outcome. Couples are free to agree to any terms they choose. In doing so I as the mediator will seek to make it very clear as to what a spouse might be giving up, and I also seek to make sure that they both are going to be okay moving forward. I don’t want either couple to have occasion to later regret their decisions.
A big issue in settlement discussions arises when each spouse has a very different perspective on what fair looks like for them. A common example is when one spouse wants to follow what the Court would do, and the other spouse has a completely different sense of fairness. This dynamic can make settlement very challenging, leading to our next concept, the reality check.
Providing a Reality Check. The intended outcome of mediation is to help couples get educated, explore their reasonable options, and efficiently resolve their matter in a fair and practical fashion. It is not intended to be used by one spouse to take advantage of the other spouse. With that said, couples have the right to decide the issues in their divorce however they choose to do so, even if the result favors one spouse over the other. When the couple does not see eye to eye and one spouse wants whatever they are entitled to under the law, and the other spouse does not agree with following what the law says and has a different sense of fairness, the mediator’s role includes providing a reality check. If the couple gets stuck and cannot reach agreement, then the other alternative is having the Court decide.
The hope is that the reality check will result in the spouse who is taking the unreasonable position to move off of their original position to a place closer in keeping with what the law would dictate. If the other spouse is willing to make some concessions it behooves the other spouse to accept because if not they might stand to do worse litigating the issue.
Each Party’s Needs and Wishes. When exploring settlement it is good to get a clear understanding of what each spouse wants as doing so can often lead to finding options that are mutually beneficial. There is a story about two people splitting an orange. The logical solution to splitting it was cutting it equally in half and each receiving their allotted half. It later came clear that one wanted the peel for making a cake and the other wanted the juice from the fruit. By one getting the peel and the other getting the fruit, they were able to each get exactly what they were after.
While the orange example is overly simplistic, it illustrates the value of understanding what each party is looking for to best facilitate coming up with a settlement that focuses on accomplishing what they each are looking for. Going straight to the traditional solutions before considering needs and wishes can result in something less than the best outcome.
Brainstorming Options Some of the most dynamic settlements I have seen have involved first placing a bunch of different options on the table to sort through to come up with the one that made the most sense. While brainstorming we might identify the options the Court would consider, solutions aligned with each spouse’s personal sense of fairness, options that meet the needs and wishes of each spouse, and then we might include weighing all of these considerations and arriving at completely new creative options that might be completely different than what a Judge would do but which might make a lot of sense for the couple.
Settlement discussions provide a great opportunity to get creative in fashioning the best solution for the family involved. Couples can accomplish fairness while meeting each of their needs while exploring creative options. Just because the final result might look different than what the Court would do, does not mean that it is not the best solution for the couple. Get creative. Seek to explore a wide variety of options.
The Costs of Litigation. Sometimes spouses just don’t want to fight. They may get educated about what they are entitled to but don’t want to go through litigation to get it. Letting go of some of what they might otherwise get at Court might make more sense to them than hiring an attorney to litigate the issue. Some issues have high stakes and the difference between winning and losing a legal argument can be an all or nothing proposition. Coming up with a settlement that avoids the litigation costs and mitigates the risk while compromising may be less than ideal, but might be the practical solution for both spouses.
There is a lot that goes into settling a divorce. Perhaps the most important task is getting educated so you can make well thought out decisions. It is valuable to understand what the Court might do given your situation. It can be helpful to understand each spouse’s sense of fairness and to provide a reality check when there is a big gap in what each spouse feels as fair. It is helpful to understand each spouse’s needs and wishes so that work can be done to accomplish something that meets everyone’s needs. Finally, it is extremely valuable to brainstorm options and get creative to be in a position to fashion the best solution. Settlement allows couples to resolve their divorce on their own terms rather than having a stranger in a robe making these all important decisions for the family.