PROBLEM: My divorce has been going on for months. I want it over. Why won’t my case settle?
Those involved in a family law litigation matter, are generally eager for their case to be “over” so that they can move on with life plans with some degree of certainty. If your attorney has told you that very few cases go to trial before a judge, “settlement” becomes the primary focus of the litigation, yet at times can seem impossible to achieve. Why? The short answer is that there has been no agreement reached. What are some of the impediments to reaching an agreement? This article addresses property issues, and not child support, spousal support (maintenance in Missouri) or child custody.
Missing Information: Divorce Courts in Missouri are required to divide all property and debt, as well as set aside to the appropriate party any separate non-marital property. Without complete information on all the property and debt (do not forget frequent flyer miles and other awards points), there is no way to assess the options for the division of property and debt. Sometimes the information can be obtained easily. Account statements and car titles are usually obtained easily. When you need an appraisal of a home or a business interest valued, this information is more difficult to come by. If one party cooperates and the other doesn’t, it can take long months instead of a few weeks to obtain the necessary information in order to look at the options for the division of property and debt.
Disagreements on Values. Competing assessments as to what the worth of cars and homes can make a meeting of the minds on property settlement difficult. This is often due to each party going online and determining what the cars are worth, or each party to a case paying several hundred dollars to have different appraisals as to the value of the marital residence.
Attorneys with different approaches. When the parties to a family law matter select their attorneys, they are usually not doing this together. They are each consulting with friends, family and colleagues or going online without checking in with each other. Their selections are often personal and most often fail to take into consideration how their attorney views the work ahead. Is the attorney going to acknowledge that there are paths to settlement than can circumvent some of the negative fallout of traditional litigation? Is the attorney one who encourages open sharing of information or assists his or her client in making the other attorney and party get information the hard way with costly subpoenas, depositions and motions before the court? The selection of attorneys can set the course for a good resolution without undue delay or protracted process ending with a less than satisfactory settlement for both parties—often because the fees to the attorneys took much of the martial assets.
Lack of a joint commitment to resolution. Too often, the parties have not made a firm commitment to each other to work toward a resolution that they both can live with. Without this commitment early on, it is easy to spend time and energy disputing the other person’s point of view rather than working to find common ground.
SOLUTION: Before you begin the divorce process, consider how best to commit to resolving the issues and following through on the commitment. This may mean that you and the other party may have to put aside some serious differences of opinion as to the how and why of the break up. It may mean that you determine the process that you want to use BEFORE finding attorneys. You may start with a mediator and then select attorneys to assist you in the mediation process. You may want to explore the option of the collaborative process, with its team of financial, mental health and legal professionals. If you commit to an approach that is settlement rather than litigation-oriented, you may find you save money that enables you to move forward with less stress, as well as save your emotional energy for that next phase of your life.
