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About 95 to 98% of contested divorce cases settle at some point. It’s extremely rare that a case goes through trial completion with a trial decision. From the preliminary conference filing, right up until a trial begins, settlement is a possibility at any point along the road.
I’m completing a trial now where at almost every trial date, the Judge or the Court Attorney asks, “Okay, where are we at in terms of settlement?” The courts will always encourage settlement because it takes so much time and expense for a trial. It also takes a lot of time for the court & the attorneys to review the transcripts - and for the Judge to draft a decision. The Judges and Court Attorneys only have so much time to give to a particular case.
One should still prepare one’s case as if it will go to trial – but this isn’t a hard-and-fast rule. Just because a request for a preliminary conference is filed does not mean you can’t anticipate a settlement. Often, when a preliminary conference request is filed, the attorneys and the parties are still actively negotiating a settlement.
When we get to the preliminary conference and tell the Referee or Judge those negotiations are ongoing, we’ll request an extended disclosure schedule. We thus try to push the dates for completion of disclosure as far as they’re willing to go to give the case some breathing room.
If the attorneys are not able to resolve the case themselves, often a four-way settlement conference or mediation is encouraged. With a 4-way conference, the parties and their attorneys sit down in a conference room for an open and frank discussion to resolve the remaining contested issues.
It’s worth going to trial for contested divorce support or custody matters if the parties’ positions are totally opposed, and there’s no middle ground. For example, Dad wants to have overnight visitation, and Mom opposes it. If there’s no way to resolve that issue, you really have to take the case to trial.
Sometimes we can negotiate a kind of graduated schedule. If Mom’s main concern is Dad isn’t used to taking care of the child on his own, we try to resolve the case with a gradual schedule instead of going to trial. Perhaps at the three-month mark, Dad progresses to one overnight. At the six-month mark, two overnights every other week. If there are no issues at one year, then Dad progresses to a stage where he has Friday after school till Monday morning or something along those lines.
There are a variety of ways to settle the case. However, if you reach a point where we’ve explored every possible avenue of resolving the issues, and they just can’t be settled, you have to take the case to trial.
We sometimes do a cost-benefit analysis to see if it is financially worth it to go to trial with financial issues. For example, a wife wants alimony (a/k/a maintenance) and asserts she is presumptively entitled to alimony, but the husband is unwilling to give her anything. We discuss every settlement variation, but he husband is not willing to give her anything in the ballpark of what she’s asking for. The wife may see it as financially worth her while to take the case to trial because the odds are in her favor. She may spend $30 to $50 thousand at trial but will likely get $100 to $200 thousand in alimony. At that point, it’s fiscally worth it to take the issue to trial.
On the other hand, let’s say the wife’s position is she’s entitled to $100,000 in maintenance paid-out over several years (e.g., $1,500 monthly for roughly 5- 6 years). And let’s say Husband’s position is he’d rather pay nothing in maintenance. Perhaps the case can be settled by reaching a middle ground – for instance, the Husband pays a $40,000 lump sum, the discounted amount based on the Husband paying everything up-front, rather than over the course of several years. When we identify wife needs money sooner rather than later, in such instances it may be worth it for her to accept less money as a compromise for getting it all up-front.
Contested divorces happen both in court and out of court, and the Judge (or his/her court attorney or a Referee) usually plays a role in negotiations. At the very least, the Judge will often get involved to gauge how far apart the parties are in settlement discussions. Sometimes there's a "Settlement Part," and the Judges will send the case out to a Referee to attempt to negotiate a settlement.
The Judges, Referees, and court attorneys are all there to make settlement suggestions. So, if they hear what both parties say, then based on their humble experience and as a neutral voice in the mix, they can sometimes think of alternatives which the parties’ attorneys have not.
Suppose the husband is making a particular settlement position on a given issue - that court attorney or Referee may say, "I don't think my Judge would grant that," or "I don't think the odds are in your favor."In that case, you may want to come down off your posture a bit and rethink the position because otherwise, you may be spending a ton of money with little to no chance of getting the result you're looking for.
At this point, you and your attorney should have a very frank discussion about whether it is worth it to get to that point. As a client, ask yourself: is this an issue you want to spend $30-50,000+ pursuing? What if you have to budget out for a possible appeal from there, too?
This is one of the reasons why the court gets involved – to stop negotiations from reaching a stalemate on issues that wouldn’t get favorably resolved in court anyway. After meeting with a Referee, court attorney, or Judge, you can often have a more pointed discussion about the rigidity of the settlement posture.
Call Now To Schedule A 20-minute Case
Assessment
Or Full 50-minute Case
Strategy Consultation! (914) 468-0968