Preparing To Negotiate In A Contested Divorce

When Does the Opportunity To Negotiate With The Other Party Happen In A Contested Divorce?

Negotiations start when a divorce is in the uncontested phase. Usually, the other side has 20 days to answer when someone files a divorce complaint. When they answer the divorce complaint, the courts then give four months to attempt to negotiate a settlement. As this timeline goes along, there are ongoing opportunities to negotiate throughout a divorce case.

Many cases can be settled at the uncontested phase of the case. However, a minority of cases, (between 30% and 40%), cannot be resolved at the uncontested phase. So, if the matter cannot be resolved at the uncontested phase, a “request for judicial intervention” is filed, and the case is considered “contested.”

This request is a long way of saying the client wants to see the divorce Judge. In such event, the Judge will set a preliminary conference and start a discovery schedule to narrow down the outstanding issues.

Throughout this phase, the Judge will encourage the parties to continue negotiating. Likewise, the attorney should continue to encourage the parties to negotiate – though, in a minority of cases, settlement is not a possibility.

If you know your case cannot be settled, then you want to let the Judge know. In this situation, you need trial dates to resolve the outstanding issues. However, just because you are on your way to trial doesn’t mean that negotiation is off the table.

In most cases, negotiation is ongoing and happens up to the point of the trial. I’ve even successfully negotiated and settled cases on the first day of trial (I’ve even settle a handful after the trial has begun). The key here is to continually look for opportunities for settlement and negotiation throughout the process – no matter what comes your way.

Does Knowing the Opposing Attorney And Their Negotiating Style Help Your Position In Negotiating A Contested Case?

Sometimes, you can benefit from knowing the opposing attorney and their negotiation style, and other times it doesn’t matter. Every case is different. Just because an attorney took a particular stance on one case doesn’t mean they’ll take the same stance on another case.

Nevertheless, knowing whether a particular attorney is overly aggressive or passive might help in how you approach the other side. Also, knowing whether the attorney is well-versed in trials (as opposed to being more of a mediating attorney) may make you consider whether you want to approach negotiation from a particular standpoint. Ultimately, it comes back to knowing what you want to do on behalf of your client and approaching things from there.

Does A Spouse’s Fighting Style Help You Plan A Negotiation?

Suppose your client says, “I know my spouse is agreeable to the core of what I’m saying,” or “They’re kind of a pushover, so if you suggest things, they’ll go along with it.” In this case, you can start negotiations from that standpoint.

On the other hand, if your client says, “My spouse is very aggressive, and if you propose certain things, I don’t think they’ll ever agree.” As the attorney, you must meet fire with fire because often the way to get them to move is to start threatening to jack up the litigation, bury them in paperwork, and issue subpoenas all over the place.

There are ugly divorce cases, and depending on the aggressiveness of the other side, you may have to be aggressive if your client wants certain things. In fact, I’ve had cases where the other side subpoenaed my client’s mother, even though she didn’t have all that much to add to the lawsuit.

I even had a case where the opposing counsel subpoenaed my client’s boss – something I wouldn’t generally do. They sent a process server out to pound on the front door of his boss’s house at six o’clock in the morning. This extremely aggressive stance – although legal – is not wise unless one has no interest in resolving the case amicably.

Indeed, knowing how aggressive the other party will be can make you rethink how you approach negotiations and litigation strategy – because the two might go hand in hand.

For more information on the Opportunity to Negotiate In A Contested Divorce, an initial consultation is your next best step. Get the information and legal answers you seek by calling (914) 362-3080 today.