• What Does It Take to Avoid Divorce Litigation and What Do You Get in Return?
  • November 27, 2014
  • Law Firm: Zlock Coverdale P.C. - Langhorne Office
  • Everyone has heard horror stories about divorces that drag on for years, and in some cases, longer than the marriage itself. While an unfortunate reality for some people, it does not have to be a reality for most. It is entirely possible to resolve a divorce and all related issues without ever stepping foot inside a courtroom. This non-litigious alternative typically costs far less and is faster and less stressful for all involved.

    You may be wondering what concessions you need to make to stay out of court. It does not take "giving up the farm." It does not mean you have to remain best friends with your estranged spouse. It does not involve disregarding the court system and the potential benefits it has to offer you. It simply means working through the issues without the necessity of a court telling you what needs to be done.

    Let's consider what impact the court system should have on an out-of-court settlement. The way in which the corresponding court system operates is of utmost importance in each and every negotiation, because there are intricacies applicable to the court in each jurisdiction. As you go back and forth with opposing counsel/opposing party, and as you consider and generate counteroffers, you must understand the legal landscape in which you are operating. Stated differently, you have to consider what is likely to happen if you have to go to court to resolve your differences. This keeps your settlement from deviating from the guideline principles to an extreme degree.

    Consider the following example:

    • Susan (age 50) and Bob (age 52) have been married for 25 years as of their separation.

    • For the first 18 years of their marriage, Susan worked outside of the home, while Bob remained at home and cared for their 2 children.

    • Only in the last 7 years of their marriage did Bob recommence his educational and career pursuits, and as a result, the income disparity is substantial - Susan earns $350,000/year, and Bob earns $80,000/year. Susan has various retirement and health insurance benefits associated with her employment, whereas Bob gets the benefit of his salary only.

    • Susan believes her efforts are the primary reason why the parties have accumulated such a substantial marital estate, so 50/50 is what she believes is fair; she also believes that alimony should not even be an issue, since each of them should live based on what he or she earns.

    • Susan's attorney contacts Bob’s attorney and offers a 50/50 division of assets, without any mention of alimony. Susan's attorney appears confident with the proposal being made.

    • Bob receives the news and has no idea how he will make it work based on this settlement, but he has no idea whether he is entitled to more. Bob knows that he needs more from the parties' savings to move forward, and he needs monthly support to get himself by from month to month (i.e., he needs an ongoing source of income in addition to that which he earns).

    Even though the parties appear to be far apart, this case would not "just go to court," if Bob makes a counteroffer that involves a more disparate division of assets and a longer alimony term, considering (1) the length of the marriage and (2) the parties' income disparity that is almost certain to continue until the parties retire. As long as Bob's counteroffer is reasonable (not a 75/25 asset division, plus 15 years of alimony), it is more than likely that Susan’s attorney would encourage her to accept same, provided that her attorney is one who focuses on family law and understands its intricacies. Susan's attorney would know that Susan cannot expect to attain a result consistent with the terms of her initial settlement offer, and what the Master/Judge would order is certain to be worse than that which Susan is offering.

    On a related note, you can see that giving in from an initial bargaining position does not involve "giving in" overall. Rather, it involves giving in to the point where both sides have made strategic compromises and do better than they would by going to court, especially after considering the attorney’s fees and risks associated with having a third party make the determination as to what is equitable for both parties. Additionally, by structuring the agreement outside of the court system, the parties can effectuate unique arrangements that the Master/Judge would not order.

    For instance, the parties could agree to a longer alimony term, provided that there is a ceiling for how high the amount can go. That way, Bob has the ongoing financial support he needs, but Susan can keep more of the upside from her future earnings. Of course there would be provisions for modifying downward, in the event that Susan suffers an involuntary reduction in her income below present levels. Otherwise, however, there would be stability going forward.

    While such negotiations certainly are easier when the parties have a more cordial relationship, even parties who barely talk to each other can make this work, by considering the process from a business perspective and remembering that the law cannot address the emotional turmoil that divorce creates; the law can only address the financial turmoil that divorce creates. Ignoring this crucial fact can lead to a lot of wasted time and money that leaves no one in a better position at the end.

    All in all, with knowledgeable counsel in your corner, you can avoid unnecessary litigation and get to an end result that is satisfactory to both parties, all at a fraction of the cost and uncertainty.