Divorce Settlement Questions
“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. I will say that it’s easy to call a lawyer and ask this however, if you are getting a free consultation then you really can expect the answer is worth what you paid.
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.
This is really how the divorce process works in minnesota, at least as far as property division goes.
Children? That can be a whole different calculation, but don’t worry, read on abelow and I’ll do my best to talk about Family Law, the mediation process and if a settlement agreement is any good or not!
Valuation Can Be Difficult
One of the more difficult aspects in dividing property in a divorce is figuring out what the actual value is of your property! 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 “normal” custody arrangement or parenting plan in Minnesota, it is far too dependent on very specific facts that are appropriate in each divorce case.
For example, does one of the parents have a mental health problem? What about chemical dependency problem? Maybe there is a history of domestic violence? All of these can impact how the Judge and the court system 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 (what we used to call visitation) 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? is it worth at going to trial?
That is really only an question you can answer since you having that overnight is really hard for your lawyer to put a quanitity on it. 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.
Child Support
In an ideal world, decisions made during a divorce, particularly those concerning the welfare of your kids, would be guided solely by what best serves the interests of the child, rather than financial considerations (aka Child Support). Child support, theoretically, is intended to ensure the financial well-being of the child, covering expenses related to their upbringing and daily needs.
What you will pay or what you are going to receive should not influence decisions such as custody arrangements or parenting time; these should be determined by assessing the capacity of each parent to provide a stable, loving environment, as well as the child’s emotional and physical needs. The primary goal should be to foster a nurturing setting for the child to grow and thrive, irrespective of financial transactions.
In an ideal world, decisions made during a divorce, particularly those concerning the welfare of children, would be guided solely by what best serves the interests of the child, rather than financial considerations. Child support, theoretically, is intended to ensure the financial well-being of the child, covering expenses related to their upbringing and daily needs.
It should not influence decisions such as custody arrangements or parenting time; these should be determined by assessing the capacity of each parent to provide a stable, loving environment, as well as the child’s emotional and physical needs. The primary goal should be to foster a nurturing setting for the child to grow and thrive, irrespective of financial transactions.
However, the reality often diverges from this ideal. Financial considerations, including child support, can and do play a significant role in decision-making processes during a divorce. The cold hard reality is that if you don’t at least consider child support it’s hard to make a plan.
For some parents, the prospect of receiving or paying child support may influence their stance on custody arrangements, pushing them to pursue more time with their child not purely out of a desire for co-parenting but as a strategy to adjust financial obligations.
So…Should I Settle Or Not!?
What I like to tell clients is this: It’s not my life it’s yours. Remeber, I’m just the hired lawyer to help you out. I’m not living your life! It’s not my monye, it’s not my child!
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! If you are going to spend $10,000 to go to trial to only get a $500 bird bath, well that seems pretty silly to me, but I don’t know how important your bird bath is!
I will say I’m surprised how many people feel they have to settle and don’t realize they can always go to trial. 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 as we sometimes call it.
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!
Information obtained in mankatofamilylaw.com may contain knowledgeable content about Minnesota Family Law that may be considered beneficial to some; however, in no way should this website or its contents be considered legal advice. Mr. Kohlmeyer is a Minnesota licensed Attorney and cannot provide legal services or guidance to those outside of Minnesota.
