Trying to Settle Your Custody Case Outside of the Courtoom

Over the course of 20+ years as a practicing attorney, I’ve taken a lot of custody cases to trial but I’ve also settled a lot of cases.  In fact more of the cases I’ve handled have settled outside of the courtroom. These cases usually get both parties the best results.  Settling on their own terms vs. having the judge tell them what they are going to do with their lives and their children.

Right now I am trying to help settle a case for a client that’s been going on for over a year.  There are a lot of issues including decision-making also known custody of the child as well as parenting time.   In the course of this year we’ve extended a number of settlement offers to he and his attorney.  He has not even responded to any of those settlement offers.  And what has happened is that we have had to go to trial a few times.  We keep thinking we are going to get the case done in one trial setting in several hours.  But it doesn’t get done and the judge is telling us we need to come back.

My client has spent tons of money getting ready for this case really just wants to settle it.  We’ve been massaging some of the other settlement offers that we’ve been sending out.  One thing that I’ve noticed about my client is that her settlement offers when it comes to a couple of issues is  she’s really insistent on getting the very best case scenario for herself.   For example she wants reimbursement for all of the community expenses such as the gym membership, the phone bill, etc.  She has been incurring these since this divorce action started. And her best case scenario would be to got to trial and have the judge award her 100% of the reimbursement that she is requesting.  I will say it is rare for a judge to do that.

Usually a judge will say I’m not going to give you a reimbursement, move on.  So in this settlement that I’m working on with my client she is asking that her ex pay her 100% of her share.   There is no question that she is entitled to it.  It’s not fair that she carry 100% of this.  But if her goal is settlement then there are certain things that she is gong to have to let go of.  In my mind this one of the things that she should let go even though I do not think it’s fair.   But if you want to settle a case then you are going to have to compromise in some aspects.

But there are things on his side that he probably does not think is fair.  For example she wants joint decision-making but she wants to be able to have the final say.   Even though there is good reason for this.  So I am encouraging her to let go of the expenses which amount to a few thousand dollars that she is demanding from her ex.  He has really nothing to lose by going to trial on those items. So when you are extending a settlement offer, there are 3 things you should ask when you are extending the offer.

The first thing to ask is do I really want to settle this case? Is that my goal when making this settlement offer.  If it is I encourage you to look at those places of that offer where maybe you could give a little.

Secondly if your goal isn’t really to settle but your goal is to show the judge you are being reasonable by extending a settlement offer, then it may not hurt to demand your best case scenario at trial.  Remember that if you do make that demand in your offer and you take it to trial the judge may look at that demand as not reasonable depending on the position.

The third thing that you may be trying to do with your settlement offer is just get a conversation going and you may not have the expectation that the other side is going to agree to each and every thing.   You may have the expectation and the hope that they're going to get to talk with you and make a counteroffer.   Sometimes that happens.   In the case that I was just talking about it hasn't happened.  The other side hasn't responded to either first settlement offers so I don't expect that he's going respond to this one.   

So I had to ask my client again really what is your goal.  Do you want this to end and if so what can you let go of.  And while you don't you know, start with your best offer at the beginning of settlement negotiations.   Remember that this particular case has been going on for quite some time and we have extended different permutations of offers.   They haven't worked so now we got to go back to the drawing board and look at something a little more creative.