In a previous post, I discussed the various alternatives to a nasty divorce trial. One of those major alternatives was settlement negotiation. Settlement negotiation is the process where you and the other side try to negotiate an acceptable resolution for both of you. It is important to consider settlement as an option, as generally nobody gets exactly what they want when cases go in front of a judge. It is better to get something you can live with on your own terms than to risk getting something that could be seen as wildly unfair by both parties.
So what happens during settlement negotiations, and what is the process?
Are You Bound by Settlement Offers?
If you make an offer during settlement negotiations, do you have an opportunity to retract that offer? The answer is generally yes. At least until there is a signed agreement. However, there are some risks in retracting a previous offer.
Virginia law tries to encourage parties to come to a fair resolution on their own and to not waste unnecessary legal expenses. In Virginia, if the Court believes someone is unnecessarily delaying proceedings and being unreasonable, that person can be ordered to pay the legal fees of the other side.
Furthermore, going back on settlement offers can have a discouraging effect on the other side. They may not be willing to consider your new settlement offers if they feel you are being unfair and reneging on previous offers.
What is a Valid Settlement Offer?
Generally speaking, a settlement offer should include all the issues that the court would have to deal with if the case goes to trial. You do not want to leave items on the table. A court will only enter a settlement agreement if all the items have been resolved. For example, if you forget to talk about life insurance or bank accounts, then you do not have a complete settlement offer.
A settlement offer typically takes the form of a proposed separation agreement or an itemized letter. Settlement offers are best done in writing, so there is some proof of the offer in case you have to go to court.
Can Settlement Offers be Used Against You?
Virginia law discourages the use of settlement offers in court. The purpose of this rule is to encourage good faith settlement discussions. So long as you properly label your settlement offers, then the only real use for those offers is to establish legal fees if the other side is being unreasonable. However, if you do not adequately label your settlement offers they could be used against you.
Why You Need a Divorce Lawyer
If you are in settlement negotiations, it is important to hire a divorce lawyer. A divorce lawyer will know how to properly label settlement negotiations to prevent them from being used against you later. A divorce lawyer can also help you understand what is a fair offer, so you do not risk an award of legal fees if the matter does not get resolved and goes to court. If you are considering a divorce, hire a lawyer.