After the laborious discovery process is complete, or at least significantly underway, the next step in a divorce case will be the settlement and mediation phase. During this time, you have the most control and input over the fine details of your case.
Suppose there are specific provisions that you would like to see in your settlement, especially in your parenting plan. In that case, this is the time to negotiate those because in trial, even though your judge has a lot of discretion, there are still things they cannot do that could significantly help your case.
But I am jumping ahead a little. First, let’s get a basic idea of what you need to settle a case.
Marital Settlement Agreement
First, there will be a document called a Marital Settlement Agreement (also known as a Mediated Settlement Agreement if you settle through the mediation process).
A Martial Settlement Agreement (MSA) is a document stating that you and your spouse are divorcing and dividing up your assets in a particular way. The Agreement will have some very detailed provisions, others that are only a sentence or two, and then quite a bit of what lawyers call “boilerplate” language that every agreement needs to protect it from later legal challenges or changes in the law in the future.
The MSA contains the financial aspects of the divorce, including the major issues, such as the equitable distribution of assets, alimony, payment of child support, and who will be paying attorney fees. It also contains provisions about the home and outlines refinancing, if necessary, or the terms for selling the home and transferring other property to one spouse or another.
Second, you will have a Parenting Plan if there are children in your family. The Parenting Plan (PP) is a detailed document outlining parenting provisions for your child(ren). It is very detailed, and most clients are surprised with how many things the plan includes. For some, the level of detail about your children and timesharing can be a comfort; for others, it can feel constricting.
The main points of the parenting plan are to determine when the kids are with each parent throughout the year, how they will spend holidays and summers, and which parent (usually both) will make decisions about the major aspects of the child’s life.
Reaching a Settlement Agreement
Offer and Negotiation
The process of actually reaching a settlement agreement can happen in various ways. The first is that one attorney could draft a letter to the other attorney outlining the main things that they would like to “offer” the other side to settle. The other side could send a counter-offer back, and then perhaps one or both of the attorneys begin to draft a Marital Settlement Agreement and Parenting Plan, which outlines the main agreements. I love to handle cases that can settle between two rational and or settlement-focused clients and attorneys. I find that making a reasonable offer to settle without the need for hearings and/or mediation can be the least expensive and quickest way to get a divorce over.
Another, and the most common, way to reach a settlement, is for the parties to attend mediation. Mediation can happen at any time during the process, even pre-suit. Still, it often occurs when the attorneys and clients both feel they have enough information from the discovery process to make a final decision. Mediation is also often Court Ordered by the Judge before scheduling a Final Hearing with the Court.
Mediation is a process in which both parties appear with their attorneys in the office (or Zoom room) of a third-party neutral mediator. The mediator is chosen by the mutual agreement of both attorneys.
The main fear of parties going into mediation is that they will have to face their spouse- YOU DO NOT! In our area, mediators keep the parties in separate rooms (or separate zoom rooms), and the parties never see each other.
The other fear is that the mediator will decide on something the client does not like. However, this is the best thing about mediation – nothing happens in mediation unless both parties agree.A mediator is a neutral facilitator and does not force either party to do anything or have any ability to make decisions.
Mediation is a confidential process which means both parties can speak frankly to the mediator without fear that their offers will be expressed to the Court by the mediator.
This confidentiality allows the parties to make the best offer possible to settle the case without fear that an offer will somehow be used to show their position to the judge.
A good mediator will point out the weaknesses and strengths of the case to each party and apply enough pressure on both sides to move off their winning position and move toward the middle recognizing that in mediation, both parties will have to give up something they want in order to reach an agreement. Mediation can take anywhere from two to six hours, and some continue for much longer, even days. If the parties agree during the mediation, the mediator puts everything into writing for signature that same day.
Once an agreement is reached, it is essentially the downhill side of your case as the attorneys will have some closing pleadings to file with the Court, and generally, the Court returns the final order of divorce within several weeks.
As a practitioner, the best thing about settlement is that you are not putting your case and your family in the hands of a stranger who, while qualified, does not know your family and will have to make decisions about your future after only a short period of time in a Final Hearing which could be less than four hours long. It also allows the parties to include provisions that Judges cannot order due to their jurisdictional limitations in their agreements.
For example, provisions related to college education or purchasing cars for older teens are not issues that a judge can determine but can be included and later enforced, if necessary, in your agreement. If you need any out-of-the-box or creative solutions for your family’s case, mediation and settlement are when you get them.
Additionally, settling between the parties or through mediation is a huge money saver. The cost of your case is likely already expensive up to this point, but if you move past mediation, the fees start accumulating on hyper speed because preparation for a final hearing is very time extensive and expensive.
I am a firm believer in mediation. If you have reasonable parties and good lawyers who are prepared, there is a greater than 90% chance your case will settle at mediation.
However, there are times when one party is entrenched in a position that is not reasonable or attainable, meaning a case is unlikely to settle. It is also possible to learn new information during mediation which could make settlement unlikely. Sometimes, the offer is not as good as what you or your attorney believes they can get at trial. Rely on your attorney to tell you what your “over/under” could be and your best day/worst day scenarios.
While none of the lawyers can fully predict what a Judge will do in Court, often, your lawyer will have a very good idea of where you are likely to land in Court. If you attend mediation and cannot reach an agreement, the Mediator will issue an impasse. An impasse is typically the pleading that allows the case to be set for a final trial unless more discovery is needed before scheduling the final hearing.
It is important to remember two things at mediation:
- If you don’t settle, you can always still try to settle in the future outside of mediation, but during mediation is your best shot.
- Mediation is non-adversarial, and if you don’t settle, you will enter the most adversarial stage of litigation as you move toward a final hearing. Go into settlement negotiations with an open mind and the ability to be flexible as new information or unexpected offers are presented.
Also, remember that once you sign the agreements, there are extremely limited reasons why they would not be the final order of the court, so make sure you read and agree to the terms because there are virtually no takebacks.
Some clients believe that if their attorney is pushing them to settle, it is because they are weak or do not want to go to trial because they are afraid. This is a very unlikely summation. Most family law attorneys are in trials and hearings all the time and are not afraid at all to go before a judge because they are litigators. However, most family law attorneys know their case and how the facts fit into the legal confines of the statutes and case law and can reasonably predict how their case will stack up in Court.
Settlement does not signal weakness; it signals self-awareness by both the client and the attorney.
I will leave you with this quote from John F. Kennedy:
“Let us never negotiate out of fear. But let us never fear to negotiate.”
Autumn Beck Blackledge has been practicing law for over 20 years and started her own firm in 2014, practicing exclusively in Marital and Family law. She is a Pensacola native and graduate of Tate High School and Florida State University, and FSU College of Law.