Kent County Divorce Attorney

Negotiating Michigan Divorce Settlements

In most cases the terms of divorce are settled through negotiations between the parties, with or without the assistance of attorneys, a mediator, or the Judge.  Mediation is a type of negotiation in which a neutral third party facilitates the bargaining. If the parties reach an agreement it is written into a court order, called a Judgment of Divorce. By signing the Judgment, the Judge orders the parties to be bound by their settlement agreement.

You can negotiate a case yourself or you can have your attorney negotiate for you.  You can negotiate some issues, and allow your attorney to negotiate other issues.  You can negotiate with or without the assistance of a mediator.

Do not negotiate yourself if you are in an abusive relationship.  You will not have equal bargaining leverage.  The risk of abuse increases at the beginning of divorce cases, and during periods of stress, which includes negotiations or trips to Court.  Attempting to negotiate your own issues increases the risk of assault.

Do not negotiate yourself if you do not otherwise have equal bargaining ability.  Does your spouse always win your arguments?  Do you always give in to preserve peace and harmony?  If so, allow your attorney to negotiate for you.

Factors Which Affect Divorce Negotiation:

This is a description of some of the factors which affect the outcome of settlement negotiations.

Mutual Benefit - the longer a case goes on, the more expensive to each party in time, hassle, emotional turmoil, and attorney fees.  Therefore, both parties benefit when negotiation results in early settlement.  A early settlement is therefore a potential Win - Win result (if you do not give up too much to get it).  Although one party may benefit from an early settlement more than the other, there will still be benefits to each compared to mutually running up a big attorney fee bills for a trial in the case.  This mutual benefit decreases the further into the case the parties go before settling.

Agreement - To settle, the parties must agree upon all the terms of the divorce. This may seem obvious, but I have found that some people think that, if they want to settle, the case should be over. It won’t be over until or unless their spouse agrees. You can’t force the other party to settle; he or she must sign on the dotted line willingly.

The Law - Obviously, if the law requires a particular outcome, this will limit what the parties may agree upon. For example, the law requires that Judges order the amount of child support set by the Child Support Guidelines, unless the Judge finds the application of the Guidelines unjust or inappropriate due to some unusual circumstance. Even if the parties agree not to follow the Guidelines, the Judge is still obligated to follow the Guidelines unless doing so would be unjust or inappropriate.

Judge's Discretion - On many issues, the law gives Judges broad discretion to do what the Judge believes is fair under the circumstances. For example, the Judge has little discretion as to child support, but very broad discretion as to alimony. In negotiating a settlement, the attorneys and their clients will be influenced by what the Judge would be likely to do if a trial were held.

Parties' Discretion - The parties have more flexibility in working out the terms of their settlement that the Judge has. That is, on some issues the parties can agree to some arrangement which is different from what the Judge could or would do. Although each settlement must be approved by the Judge, Judges will usually go along with the parties’ agreement even if the Judge wouldn’t have ordered those terms for divorce without the parties’ consent.

Certainty of Result of Trial - Sometimes the outcome of an issue if there is a trial will be obvious, either to the attorneys or to the Judge. Judges in Kent County get involved in settlement negotiations. If there is a dispute as to how the Judge will exercise his or her discretion with a given set a facts, the Judge will often tell the attorneys the likely outcome if the case goes to trial. The parties may then agree to what the Judge has predicted in order to avoid the expense of an actual trial.

Uncertainty of Result of Trial - Even if the Judge offers a prediction of what he or she will do at trial, the Judge is not bound by that prediction. The facts might be different from what the Judge thought they were, or the Judge may decide to do something else after thinking it over. If there is a major fact dispute (which there often is in contested custody cases) the Judge’s ability to predict the outcome without hearing all the evidence is limited. The parties may wish to settle to avoid the possibility that the Judge will give them less than what is being offered in settlement. Sometimes Judges simply come up with bad decisions; going to trial always involves a risk of a bad result.

The Norm - The norm is what usually happens in most divorce cases. This is determined by the law, how the Judge uses his discretion, and the local custom and practice of the Court and attorneys practicing law before the Court. The party who is asking for the norm is more likely to succeed than the party asking for something outside the norm. The party asking for something outside the norm is going to bear the burden of persuasion; the further outside the norm, the less likely the party will succeed.

Attorney Experience - More experienced attorneys are better able to predict the outcome of a case if there is a trial, and consequently are able to provide their clients with better settlement advice earlier in the case. This may lead to an early settlement at less cost in attorney fees. Less experienced attorneys are more likely to miscalculate their clients’ chances at trial. This may result in the attorney advising the client to accept too little in settlement, or coaching the client to hold out for too much. If too much, then the case may not settle and a trial is more likely. Also, if the attorney cannot predict the outcome of a particular dispute, the attorney may decline to negotiate and instead schedule hearings so the Judge can decide the issue. This results in an increase in attorney fees, which may perversely reward the attorney for lack of knowledge or indecisiveness. As a general rule, I find it easier to settle cases with more experienced attorneys; however, this is not always true; it also depends upon the attorney’s style.

Attorney Style - Some attorneys simply work harder to settle cases earlier than other attorneys. Attorneys who obstruct early settlement may gain concessions for their clients because the other side gives up and wants the case to be over.  These attorneys often describe themselves as "aggressive".  Aggressive, hard ball negotiation techniques often backfire by angering the other side.  This reduces the chance of settlement, and may inflame the passions of the parties to the extent that things are worse than before negotiations started. There are some attorneys who will counsel their clients to make reasonable settlement offers early in the case and save attorney fees. Other attorneys seem to be intent upon turning molehills into mountains, and won’t get serious about settlement until the trial date.  Remember: the earlier a case settles, the less attorney fees, and the more that is left over for the parties to divide between themselves. Conversely, the more an attorney stirs things up through hard ball tactics, the more money the attorney will earn.

Attorney - Client Control - This refers to the degree that the client trusts the advice of an attorney and will follow that advice, as well as whether that client is getting good advice.  Some attorneys seem unable to tell their clients bad news. If Plaintiff says “I want all of the property in settlement”, then the Plaintiff has an unrealistic expectation. Plaintiff’s attorney should tell the Plaintiff the bad news and counsel a more realistic settlement proposal. If the client follows that advice, then there is "attorney - client control".  If the attorney does not exercise client control the case is not going to settle until that attorney’s client gets the bad news from the Judge. Parties should expect their attorneys to give them the bad news, and not just agree with everything the client wants, so that the client may assess whether spending additional attorney fees asking for something that is not likely to happen is worth the price. 

Attorney Knowledge of Facts - The more an attorney knows of the client’s situation, the better the attorney will be able to predict the ultimate outcome and advise the client. The attorney’s knowledge is dependent upon getting information from the client or, if necessary, other sources (for example, appraisals of property). Sometimes clients are reluctant to tell their attorneys bad news (for example, “I had an affair”, “I cheat on my income taxes”, or “I beat my wife up”.) This affects the attorney’s ability to assess the reasonableness of settlement offers, which may delay settlement. Ultimately, the bad news gets used by the other party against the client, either at a settlement conference with the Judge or at trial. Cooperate with your attorney in gathering information and tell your attorney the bad news at the beginning of the case.

Parties' Attitudes - If both parties want a fair settlement as soon as possible, then the case will probably settle quickly. If one party doesn’t want the divorce, that party may make unreasonable settlement demands to delay the divorce in hope of reconciliation and dismissal of the case. If one party is angry at the other, he or she will likely make unreasonable demands and the case will settle later or require a trial. If a party is feeling guilty, then that party may make unnecessary concessions in favor of the other party. If both parties want more than half of the property and neither will relent, the case will not settle. Custody disputes are especially emotional and compromise may be difficult.

Time Pressures - The Court has too many cases, with too few Judges to decide them. If the parties cannot settle, there may be a long delay before a trial can occur. The more a party wants to case to be over, the more pressure on that party to make concessions to get the case over. Telling your spouse that you want the case over with as quickly as possible is often a bad idea, because it lets your spouse know you are feeling time pressure; your spouse may slow things down to put still more pressure on you. Time pressures may become intense when you are at court, the Judge is leaving in 10 minutes, and if you don’t settle now it will be two or three more months before negotiations resume or a trial is scheduled. An extreme example of time pressure are those cases in which a party sets a date to get remarried before the divorce has been granted by the Court, and lets the other side know that they have done so. This mistake can be very costly.

Money Pressures - The longer the case goes on, the more work the attorneys do and the more expensive the attorney fees are. Property or incomes may be tied up during the divorce putting extra financial pressure on one or both parties. If a party is better off financially under a Temporary Order than they expect to be under the Judgment of Divorce, that party may delay settlement. To the extent that one party is in a better financial situation that the other party and is more willing to pay additional attorney fees, that party will have an advantage in settlement negotiation since he or she will be better able to hold out for an improved settlement offer and to bring financial pressure on their spouse.

Reasonableness of First Offer - A reasonable first offer to settle is more likely to be accepted by the other party. When I make a reasonable settlement offer at the beginning of the case it is often accepted by the other party and the case is settled without further negotiation at minimal expense to my client. However, if the response of the other party is to make an unreasonable counter-offer, there will be little room to negotiate and a trial may ultimately be necessary. I have had trials where the ultimate result after considerable attorney fee expense for both parties is a settlement nearly identical to my client’s first settlement offer. Many attorneys will make a completely unreasonable first offer, which leaves them lots of bargaining room in later settlement negotiations.  However, if the offer is too unreasonable, the other party may become angry, touching off a cycle of recrimination leading to unnecessary court fights and more attorney fees.  Your goal is generally to make an offer which is favorable to you, but not so unfavorable that that it makes things worse, not better.

Precision Demanded - It is easier and quicker to settle a case where the standard of fairness being applied by the parties is “close enough” instead of “precisely correct”. For example, assume each party obtained an appraisal on the marital residence, and one appraiser came up with a value of $180,000 and the other $184,000. In a “close enough” approach the parties will agree to split the difference and set a value of $182,000. A “precisely correct” approach will have each party paying their attorney $200 per hour to flyspeck each appraisal and haggle over which appraiser did a better job. It is always a good idea to weigh the importance of what you are arguing about with the cost of that argument. Every attorney has horror stories of the amount of attorney fees that were spent by parties arguing over toasters or pots and pans. This is an area in which the party who is angry or who has the advantage in Time Pressures or Money Pressures may stall out the settlement negotiation by focusing in on petty things, with the party under pressure making all the concessions just to get it over with.

Generosity - Fairness is in the eye of the beholder. It is not unusual that each party at the end of the negotiation feels that they got the short end of the stick. If each party’s focus in settlement is fairness only as to themselves, the negotiation may degenerate into “precisely correct” mode. If a party’s focus is “I want to be fair to my spouse”, or a party defines success in negotiation as “close enough” or as something less than 50/50, that party will probably make the concessions that results in settlement. The settlement may or may not be fair to the generous party in dollar figures, but the good will or personal satisfaction to that party may be worth it. This is especially true if you have minor children. If your spouse believes that you did not treat him or her fairly in the negotiation, there may be retaliation over the following years as your spouse bad mouths you to the children or fights you on custody, parenting time and child support issues. Sometimes it is better to let the other party get the last settlement concession so that he or she will feel victorious, setting the stage for cooperation on the next issue that comes up.

Bad Faith Negotiation - Any negotiation should proceed in a fair and orderly movement toward a common middle ground. Some people, however, do not negotiate in good faith, sabotaging the settlement effort. Here are two bad faith techniques in settlement. The first is where a counter-offer to a settlement proposal is less generous than a prior offer, even though there has been no change in circumstances in the meantime to justify the change. In simple terms this is the settlement negotiation that follows this pattern: Plaintiff says “I’ll take a $1000". Defendant says “I’ll pay $500". Plaintiff says “I’ll compromise and take $800". Defendant says, “Now I’ll only pay $250". At this point Plaintiff might as well break off settlement negotiations; the Defendant does not really want to settle. The second technique is the “hook”, in which a new issue is introduced after the case has supposedly been settled. For example, the Plaintiff’s final counter-offer, covering all of the issues that have been raised by either party, has been fully accepted by the Defendant with no modification. In other words, the Defendant has just conceded to Plaintiff everything the Plaintiff said was needed to settle the case. The Plaintiff then says, “by the way, I forgot to mention that I need Defendant pay off the loan on my car for me”. Plaintiff’s raising a new issue after getting everything previously asked for is done in bad faith. If Defendant goes along and agrees, Plaintiff will invent still another issue, then another issue, and so on, until Defendant finally says "enough".  When faced with this tactic, Defendant should insist the negotiation is over. The Plaintiff will either then concede the case is settled, or negotiations will break down before Defendant has given away the store.

Negotiation by Parties, Instead of Attorneys - Many of my clients settle most or even all of the issues in their divorce by negotiating directly with their spouse. This may result in a quicker settlement, may save attorney fees, and may allow the client to maintain a better relationship with their spouse (especially important if children are involved). On the negative side, the client may make too many concessions or make it more difficult for me to get a fair settlement if my client is not successful. If you are going to negotiate directly with your spouse, here are some important suggestions:

• Don’t do it if your spouse is abusive to you. You will not have an even bargaining leverage and you need an attorney to protect your interests.
• Don’t do it unless you trust your spouse to be fair. If your spouse is the kind of person who has been hiding assets, has sold the snowmobile to his buddy for $10, has told you he’s going to make you regret having ever met him, or is just plain a jerk, rely on your lawyer.
• Understand that you may get a worse result than your attorney could get. You do not have the attorney’s knowledge of law or experience in negotiating. (On the other hand, your spouse has the same handicap and you may actually get more this way than if your spouse hires an attorney.) Minimize this risk by going over the issues with your attorney first and get the attorney’s opinion regarding what a fair settlement would be.
• Weigh the importance of the things you are negotiating against the attorney fees saved. For example, it may make financial sense to negotiate the division of the furniture, but leave division of the real estate, pensions, and investments to the attorneys.
• Be sure you understand the extent of property and its value. A fair division is impossible unless you know what you are dividing and its value. For example, pension benefits are often very valuable, but many of my clients totally overlook this asset. When you negotiate, first get an agreement with your spouse regarding what the assets are and what they are worth, and only then agree on how to divide them. If you don’t know the values, find out first.
• Don’t negotiate the child support. Tell your spouse that the attorney will figure out the child support using the Child Support Guidelines.
• Tell your spouse ahead of time that any agreement is tentative and will need to be approved by the attorneys and Judge. This is a legally correct statement. As a practical matter, if you make a bad agreement, you can blame your lawyer if you need to back out. This leaves the door open to further negotiations. If you do not do this, your spouse will feel you negotiated in bad faith and it will be difficult to settle the case.
• Recognize that by making settlement offers you are disclosing your “bottom line” to your spouse. If you do not succeed, your spouse will not take seriously later proposals which are more favorable to you. For example, if you say “I’ll take $10000 to settle” and your spouse does not agree, it is extremely unlikely your spouse will agree to settle for $50000 when I later make that offer for you, even if $50000 is in fact a reasonable offer. This may mean you will need a trial to resolve the case.
• Keep your attorney informed of your settlement negotiation and any offers you have made. It is wasteful and undermines my credibility as your attorney if I tell your spouse’s attorney that you must have $10,000 to settle when you have already told your spouse that you’ll take $5000.
• If you obtain an agreement, it is not binding until it is put in writing or on the court record.  Therefore, tell your attorney about the agreement so that he can draw up an appropriate order to by signed by both parties.

Negotiating From Position of Strength

You are negotiating from a position of strength if:

• You know all the relevant facts
• You know what your goals are
• You have prioritized your goals
• You have control over your emotions
• You have made a reasonable settlement offer
• You know what, and how badly, your spouse wants something
• You don't have secrets you are afraid will come out
• You are under no time pressure
• You are under no financial pressure
• You are willing to spend more on attorney fees than your spouse
• Your attorney is experienced
• You trust the advice your attorney is giving you
• You have the law on your side
• You have fairness on your side
• You will likely win if the case doesn't settle and goes to trial

Free Consultation

Before you start negotiating, get advice from an attorney and know what to ask for.  Call (616) 647-2200 for a free initial consultation with Michael Idema.

Home   Planning for Divorce   Domestic Violence  Divorce Procedures   Defending Divorce   Custody and Parenting Time   Child Support   Alimony   Property Division   Going to Court   Mediation  Arbitration   Annulment   Separate Maintenance   Paternity   Attorney Fees    Forms   About Michael Idema

Michael Idema

Divorce Lawyer

6410-A Alpine Ave NW

Comstock Park, MI 49321

(Between 7 & 8 Mile Roads)

mike@michaelidema.com

(616) 647-2200

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This web site provides information for general knowledge only, and is not a substitute for advice from a lawyer.  For advice about what to do in your specific case please call for a free initial consultation.