Let’s face facts – no man wants to engage in lengthy litigation with his wife or child’s mother.  It is hard enough dealing with the emotional toll of a break up let alone suffering through a difficult and expensive legal process.  As the saying goes, if I had a nickel for every prospective client that just “wants this over with,” or wants an “amicable split,” then I’d have an awful lot of nickels.  It is, therefore, tempting to want to immediately discuss settlement with the other side.  Perhaps it is at the kitchen table, or by text or email.  Perhaps it is via a multi-layered Excel spreadsheet covering everything from support to visitation to division of the dinner napkins.  Perhaps it is shouting at one another in the basement. However it comes about, these early settlement discussions need to be approached with extreme caution.  You don’t want to make a mistake, have the discussions backfire, and make your case worse.

The first hurdle is an emotional one.  Particularly when you are the one initiating the break up, you are often months ahead of your partner emotionally.  You’ve had a lot more time to think about your options, envision the end of the relationship and process the practical issues.  You’ve researched the law and perhaps consulted with an attorney. It is quite possible that your partner hasn’t done any of these things.  Engaging in detailed “nuts and bolts” issues while your partner is still in shock over the end of the relationship can be counter-productive.  Let things cool off for a bit.  Let your partner process the situation.  Keep any discussions about settlement as broad as possible.  There’s nothing wrong with saying “we’ll work it out,” while remaining positive that you intend to be fair.

Similarly, some people are not ready to discuss settlement due to anger and/or ignorance of the law. I frequently hear from clients who have attempted settlement discussions only to have their wives reply “you’ve controlled me for 10 years and you’re not going to control me now!” Furthermore, if she hasn’t met with a competent attorney, her lack of legal knowledge can shut her down from a rational discussion. Either she has unreasonable expectations of what she’s entitled to under the law, or she makes tentative agreements with you only to be brought down back to Earth once she does speak with an attorney. Waiting for one or two court appearances may assist settlement discussions once both parties have a chance to see the courthouse and rightfully conclude that it is not a place to resolve their conflict.

Engaging in early settlement discussions can also be a problem when you don’t have all of the information.  Unless you are absolutely certain that all income and assets have been accounted for and there is no undisclosed debt in your name, it is dangerous to talk settlement. Our experience has shown time and time again that things come to light during the litigation via subpoena or asking the right questions to the other party that make settlement much more complicated.  It is essential to know all the facts before committing to a settlement.

Similarly, informal settlement discussions can be dangerous because parties are likely to miss crucial issues or concede on items that they don’t need to concede.  For instance, I frequently hear clients say, “She can have everything in the house.”  This is unnecessary and if it is stated verbally, it can come back to haunt you.  There is no reason you shouldn’t be entitled to an equitable share of furnishings and other personal property that accumulated during your marriage.  And even if you truly don’t care about this “stuff,” you should hold off on such an offer until you have to use it to get something else in exchange.  We often say “no one issue should be settled until all issues are settled”.

Settlement discussions between the parties are also often discouraged by one or both attorneys and persistent demands to work things out by one party can lead to allegations of control or emotional abuse.  In the worst of these cases, you may find yourself on the receiving end of a restraining order.

Finally, there may be a disadvantage to attempting to settle a case early on based upon you or your wife’s employment, housing or financial situation.  Divorces with minor children typically take a minimum of 6 months.  Where your wife isn’t working at the beginning of the process, for instance, it would be premature and possibly counter-productive for you to discuss custody and support issues.  Waiting a few months for her to get a job and have a new reality in terms of her availability to parent the children and contribute toward their support often works to your advantage.

There is nothing wrong with settling cases out of court.  The reality is that most cases end without much court intervention.  However, you are much better off sitting down with your lawyer and carefully formulating a settlement proposal at the right time and with all necessary information in hand.  Have your lawyer put a thorough proposal in writing and ensure that such an offer cannot be disclosed to the judge should the case go to court.

About ADAM (American Divorce Association for Men)

The American Divorce Association for Men (ADAM) is a group of highly qualified attorneys who advocate for men’s rights in divorce, child custody and parenting time, paternity, support, property settlement, post judgment modifications, and other family law matters. Since 1988, ADAM has been aggressive, diligent, and uncompromising when representing their clients. A team of compassionate and skilled family law attorneys, ADAM is dedicated to being Michigan’s leading divorce attorneys for men.