How Are Negotiations Handled In Contested Divorce Cases?
Contested divorces happen both in court and out of court, and a Judge plays a role in almost all cases. At the very least, the Judge will often get involved to gauge how far apart the parties are in settlement discussions.
The Judge’s court attorney will also get involved in settlement negotiations. 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 clients’ attorneys say, 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, as 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.
What Are the Steps In Negotiating A Contested Divorce Case?
Usually, the first step in negotiating a contested divorce is exchanging net worth statements on the financial issues. Exchanging net worth statements will aid the attorneys in knowing the incomes of both parties. It will also tell the attorneys what properties are involved, the total assets, and the total debts.
Once you have that net worth information, then one of three things usually happens:
- The attorneys for both sides jump on the phone in an attorneys-only phone call,
- One side or the other produces a settlement proposal letter or email, or
- There’s a four-way settlement conference.
It usually takes the parties anywhere from a few weeks to a few months to complete the net worth statements. In my humble opinion, however, completing the net worth statements should take, at most, a month as they’re rather simple documents. If a party needs assistance along the way, s/he should reach out to the paralegal assigned to the case. After exchanging net worths, it may take anywhere from a few days to another month to exchange settlement positions and/or set up the four-way settlement conference.
The bottom line is that the attorneys should have a good feel inside of four months to determine whether the case is settling or not. Under court rule, you are to have the case settled within four months of the other side serving their answer to the complaint. If not, you are technically required to file for a contested divorce. No fixed penalty happens if the case can’t settle within four months, but this policy (to file for a contested divorce in four months) is intended to move the case along.
Quite frankly, if the parties are not close to settling the case after four months of somewhat active negotiations, it doesn’t do anyone any good to maintain the case as an uncontested. Presumably, the couples want to get divorced, and if your positions are still far apart, further negotiations at that point would not seem fruitful.
So, four months is the safe negotiation period for an uncontested divorce before it becomes contested.
Is Some Flexibility Necessary To Successfully Negotiate In A Contested Divorce Case?
Flexibility is absolutely necessary to negotiate successfully in a contested divorce case. You do not want to negotiate by saying, “Here’s my settlement position. I’m not willing to budge.” It gives you truly little wiggle room. If one side or the other takes a rigid position, settlement negotiations are likely to be very short-lived.
As an attorney, you could go to the other side’s counsel and say, “Look, here’s my client’s settlement position, and they haven’t given me any authority for anything different. Is your client in agreement with that?” And if the other side says no, then it’s best not to waste any more time. Contest the case and get a Judge involved.
Why Is Experience Negotiating Divorce and Other Family Law Related Matters So Critical In Contested Cases?
As of 2023, I have over 25 years of experience in New York Family Law matters. I was licensed as an attorney in March 1998 and have practiced family law almost exclusively ever since.
I briefly worked for a divorce law firm after I graduated from law school. I then became a family law prosecutor handling child support, child abuse, and child neglect cases for almost three years. I went into private practice in 2000, and at some point, around ten years into practice, my work became 100% percent family law.
Having that kind of experience helps because family law is the only thing I do all day, every day, week in, week out, month in, month out, year in, year out.
Of course, all attorneys must continue legal education, but suppose somebody is a general practice attorney and family law takes up 10, 20, or 30% of their practice. In that case, family law will also take up 10, 20, or 30% of their continued learning and education.
On the other hand, consider the sum experience of an attorney who has practiced family law for 25 years and has only taken continuing legal education courses in family law.
I would respectfully say that the family law-focused attorney has much more experience to deal with a contested family law case – as opposed to an attorney with 25 years of experience but who only spent 10-30% of their time in the family law field.
Having an attorney that only exclusively handles (or at least mostly handles) family law will result in the attorney having a ton more experience on the issues involved in your case.