After the discovery phase of a divorce case, the parties should have the information they need to either reach a settlement or go to court. Before proceeding to a court trial, wise attorneys and litigants always attempt to resolve their cases by settlement. Any good lawyer will tell you that a court trial is not the most efficient way to resolve a dispute. It is common for half or more of a client’s total legal fees to be incurred in the final few weeks leading up to and through the trial.
What’s more, when the judge issues the trial ruling, the parties invariably find that the judge has missed issues entirely or has misunderstood certain issues and ruled in a way requiring clarification. These errors require post-trial motions to correct, resulting in even greater expense to the parties. It is unusual indeed for a client to be happy with every aspect of a trial ruling. The client may feel he has “won” on certain issues, but he usually feels he has lost or has not even been heard or understood on others. In general, divorce litigants are more satisfied with a settlement–a conclusion they have been involved in deciding themselves–than with a trial ruling from a stranger.
One of the simplest ways to attempt to settle a divorce case is to send a settlement offer letter to the opposing party or attorney. The offer letter should address every issue in the case with enough specificity that, if accepted, the letter will preclude the need for additional judicial intervention. If the offer is accepted but has gaping holes, the judge may still have to hold a hearing to resolve the issues omitted from the letter. If the offer letter is accepted by a written signature of the opposing party and lawyer, it is binding under Rule 69 of the Arizona Rules of Family Law Procedure. If the offer is rejected, the terms of the offer cannot be used against the offeror later in court. See Rule 408, Arizona Rules of Evidence.
Another easy way to attempt a settlement is for the parties and lawyers to meet together for a settlement conference. The lawyers should come to the meeting prepared with a solid understanding of each issue and a good idea of what a fair or acceptable outcome would be on each issue. The parties should come to the meeting prepared to make compromises and to make decisions. If one side or the other is unable to decide whether to accept certain terms and wants to take time to “think it over”, the meeting will probably not be very effective. The idea is to get an agreement during the settlement conference and to get the parties committed to it. Again, to make the terms of the agreement binding on the parties under Rule 69, one of the lawyers should prepare a simple written document summarizing the terms of the agreement and have both parties and lawyers sign the document.
Another effective settlement tool is mediation. A mediation is also a type of settlement conference, but in addition to the parties and the lawyers, a neutral mediator is also present. I prefer using a mediator who is a judge pro tem of the Superior Court. As long as the judge pro tem has been specifically appointed and authorized by the court to conduct the mediation and to accept/declare any agreements reached as binding on the parties under Rule 69, the agreement terms do not necessarily have to be reduced to writing at the time of the mediation. Instead, the mediator may simply make an audio recording of the terms and each party’s under-oath agreement to be bound by those terms. If approved by the mediator, that recorded settlement is binding on the parties to the same extent as a written memorandum of settlement terms would be.
Once a settlement is reached by any of the methods outlined above, the parties still need a divorce decree to “seal the deal” and dissolve the marriage. Usually one of the attorneys will draft a consent decree of dissolution of marriage containing the terms outlined in the written Rule 69 agreement or recorded during the mediation. As long as the terms of the draft consent decree are consistent with the Rule 69 agreement terms, both sides usually sign off on the draft consent decree with only minor revisions. The document is then submitted to the judge for signature. No hearing is required. The parties are divorced and the case is officially settled and completed when the judge signs the consent decree.
Copyright © 2012 by Scoresby Family Law – J. Kyle Scoresby, P.C. All rights reserved.