To Settle Or Not To Settle (your divorce) That Is The Question!
“Should I take the offer to settle my divorce case?” This is one of the hardest question that I get, and I get it a lot.
The question really boils down to a basic cost benefit analysis of your divorce case. If it’s only dealing with property, such as a house, retirement and cash accounts, it’s easy to give you an answer. You put your spouses stuff in one column, yours in the other and add them up. While they don’t have to be equal they should be close.
Valuation Can Be Difficult
One of the more difficult aspects in dividing property in a divorce is setting the valuation. This may seem odd if you haven’t been through a divorce, but if you think about it, it does make sense. For example; how much is your car worth? Yes, your car, the car you drove today. While you can go to a website like Kelly Blue Book and find out what the typical car is worth with your options and mileage, the only real way to find out what your car is worth is to sell it. Yes, sell it. The court will use fair market value to divide assets. The definition of Fair Market Value is ” A selling price for an item to which a buyer and seller can agree.” and the only way you can determine that is….sell it (if you two can’t agree on a value).
What about items that you can’t look up online, like a couch or a set of dishes? It gets even more tricky with those types of items, what we call “personal property”. I normally suggest making a list and adding it up, seeing exactly what the numbers are. CAVEAT: One way to go crazy and spend way to much money is to fight about each and every item on that list! Don’t do that. Instead, make the list then total it and use ONLY THE TOTAL.
Retirement issues can able be a little tricky. Not because of determining the amount of say a 403(b) or 401(k) account, that is very simple, but it is remembering that those accounts are pre-tax, not post tax like all the other items you own. Don’t dismiss this as too complicated or you don’t want to worry about it, it is very important to understand the difference between pre and post tax property issues in a divorce! So keep the two items (pre and post tax) separate.
For those lucky few of you who still have pensions, it gets even more complex. The simple way is that your spouse gets 1/2 of the marital value of the pension! Or you can value it and argue about certain actuarial tables and what the present day value is…it gets complicated fast.
Children & Custody
This is the tricky part to answer. There is no real standard custody arrangement in Minnesota, it is too dependent on facts that are appropriate in each case. For example, is there a mental health issue? What about chemical dependency? Maybe claims of abuse? All of these affect how the Judge will view the case and will have an impact in the final outcome of the custody side of the case.
If there was a custody evaluation then that can,and will, have a huge impact on the case and you need to discuss why the Judge would or would not follow this with your lawyer. Remember, just not liking the report is not a good strategy, you need to find out exactly why your lawyer feels the Judge would or would not follow the evaluation.
Parenting time issues are a little tricky too. Say you wanted Sunday overnights for parenting time, yet the last offer was that you return the kids Sunday at 7:00 p.m., what do you do? That is very hard to answer, you can try and keep negotiating but if the last offer is Sunday night and you want Monday morning, you’ve got a decision to make. Is it worth the cost? Is it worth the emotional struggle for those extra overnights? It might very well be, but only you can determine that.
So…Should I Settle Or Not!?
What I like to tell clients is this: It’s not my life it’s yours. Do you want to settle with this offer? Can you look yourself in the mirror everyday and be happy with it? If the answer is no, then don’t take the settlement! I will say I’m surprised how many people feel they have to settle and don’t realize they can always send the case to the Judge. No one is making you settle your case, if you don’t like the offer you always have the right to go to a trial or an evidentiary hearing.
Remember to factor in attorneys’ fees, length of time to get a final order and the stress involved in taking a divorce case to trial. I think this last one, stress involved in a divorce trial, is one factor that only you can consider and you should consider it. To be done with a divorce case, to go to bed and not have to worry about how much longer it will be, can you afford it, what will happen? All of those questions weigh on a person and you should consider that to when making your decision.
Final tip: Talk to your lawyer, spend time going over the whole agreement and then decide!
Good luck on your Divorce!
Minnesota Family Law Attorney