The offer you can't refuse
The aim of all family law property matters is for the parties to reach agreement as smoothly as possible so that both of you can move on with your lives.
When negotiating a property settlement making “offers of settlement” can be a useful tool to sharpen the focus on the other party to seriously consider your proposal.
The family law process enables such offers to be made on the basis that they cannot be disclosed to the court before a court makes judgement on the matter. Why would you make such or accept such an offer?
To avoid the impact of court delays
The delays experienced in family law matters in a court system that does not have adequate resources is well documented.
Having your matter delayed awaiting a hearing from a judge is stressful. It can also be prejudicial to a party’s case when considering the Court, at first instances must assess each party’s financial circumstances at the time the Final Hearing commences. For example, I have experienced situations when a party’s financial circumstances have changed significantly over an adjourned period in the form of inheritances received or compensation payments and redundancies.
Conversely there can be a deterioration of the other party’s circumstances over the adjourned period by reason of ill health or mismanagement or misfortune.
By the time the adjourned period is up the proverbial goal posts may have altered. The value of financial certainty can be the primary motivation of reaching a settlement.
Making an offer of settlement rather than just waiting for the next court event can put encourage the other party to be realistic and finalise the matter now therefore removing the risk that delay could cause for you.
Costs
Where there is delay in resolution extra legal costs will be incurred.
If you are working with an experienced family lawyer they will be able to easily assess your case and advise you on both what would be an appropriate offer to make and what would be your likely costs if the matter went further. This enables you to be pragmatic and evaluate your situation on a cost/benefit analysis to compare the value of settling now to the potential benefit of continuing with the mater.
This involves balancing the offer with the best and worst outcome at court and the extra costs and delay of reaching that Court imposed outcome. After all, it is your share of property and income clear of legal costs which is the ultimate determinate of a good or bad outcome.
Knowing that, you can then make an offer secure in the knowledge that if it is accepted it will see you avoiding those further costs.
Strategy
Sometimes making an offer of settlement is the best way to getting the other party to focus on the “bigger picture” rather than matters which may be of emotional significance to a party but very little significance to the merits a property settlement. Even if offer is not accepted it can have the effect of refocusing a party on the bigger financial picture and avoiding costly and unnecessary emotive disputes. An offer usually puts pressure on the other party to assess the merits of their case which can only be a good thing for all concerned.
Costs reimbursement after Final Hearing
In Family Law courts do not ordinarily make orders for a party to pay all or even a portion of other party’s legal costs. Costs orders are only made in certain specific circumstances.
One such reason is if an offer of settlement was made in writing, open to be accepted for a reasonable time and had terms that were the same or more favourable to the other party then the Judges decision.
In these circumstances a party is permitted to produce the written offer in support of an application that they should be reimbursed for the extra costs they have incurred.
Therefore, if you are dealing with an unreasonable ex-spouse who is unlikely to accept a reasonable offer, make one anyway with a view to recovering legal costs from him/her following the court making Orders.
The mere prospect of the unreasonable party having to pay the costs of the other may at least cause them to reflect on their position.
Conclusion
Good family lawyers see courts or the prospect of litigation as a mere tool to achieve an outcome rather than the drivers of outcomes. Determining your entitlement and then setting out a negotiation strategy to ensure you achieve your entitlement (or more) is an essential skill. I am yet to meet a client who enjoys the costs and delay of Court or protracted and directionless settlement negotiations
As an Accredited Specialist in Family Law with 18 years experience, I can provide expert advice of your entitlement from the outset so as to give you the best opportunity of your settlement being reached in a timely and cost effective manner. You can call me on 03 5445 1040 or make an online appointment.