This depends principally on whether domestic violence has been an issue in the case or allegations of domestic violence have arisen. If there have been, I usually advise them to limit communication. If there is an order of protection already in place that bars communication, then it’s obvious they can’t have any communication.
If that’s not the case then I usually tell my clients not to hesitate to talk to their soon-to-be ex-spouse about settlement terms. A lot of times parties can just discuss amongst themselves after they’ve had certain discussions with their own attorneys about numbers and where they want to end up. Sometimes “kitchen table discussions” go further than four-way settlement conferences (ones with the attorneys present). Once attorneys get involved, we have to advise our clients in a certain way and some attorneys overlook the “I just want to be done with this” factor. That can have a certain amount of value independent of just the dollars and cents.
A lot of times when the parties both talk to each other about it they’ll say at the end of the day, “these attorneys are here to make money,” and that’s true. Attorneys are in this business to make money for themselves principally. Secondly, if I can do a good job for people and leave people happy and service them and get them on with their lives, that’s great. I’m not discounting that at all but at the end of the day – just like with a doctor, an accountant, or a mental health professional – we’re all here to make money. If I can get a case done and only make $5000 (or less) off it fine by me, I’ll move on to my next case.
That was the situation with a high-income case I recently settled where the parties at least initially were gearing up to have a long drawn out contested custody battle. The case settled when I sat my client down and I said:
“there’s two directions this case is going to go. One way is we’re going to go to trial and somebody is going to get custody and somebody is going to get visitation. Either way, you are looking at spending at least $100,000 just on my fees alone. That doesn’t count the fees of the forensic accountant, it doesn’t count the fees of the attorney for the children, it doesn’t count the fees for the forensic psychological evaluation which in the Greater New York City area, may cost about $20,000+ in itself. At the end of the day if you can arrive at a doable settlement agreement, you hash out what the numbers are going to be, you hash out what the access arrangements are going to be, something that you could live with, at the end of the day is that what has more meaning to you? If you can get out of this only spending $5000 or $10,000 as opposed to $100,000?”
When I said it like that, he said “I’ll discuss things with my wife.” The case had been pending for several months with no movement whatsoever, but within one week he got back to me and said “I spoke to my wife. We’re going to settle. We’ve already discussed all the terms of the settlement and I’ll send you an email that gives you a bullet point list of everything that we settled on.” At the end of the day the client was happy, I was happy & I moved on to my next case. I didn’t make $100,000 off that case but I had a happy client. A lot of times what benefits me as an attorney is to have those frank discussions with the clients and say “this is realistically what it’s going to cost you. Do you want to jump in that deep pool or not?”
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