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Settlement When it is Right – and For the Least Possible Cost

There is a saying among realtors that the first offer is usually the best offer. Why is that?  Because the first offer is made when the property is freshly on the market. When real estate sits buyers6a3146dbdf81597192112ac03d77c7e4-300x200 become suspicious. There is also the cost of holding the property to factor in.  The first offer likely saves the seller from incurring more tax, mortgage, utility and upkeep costs. There is a lot to be said about the psychological benefits of a fast deal as well. No worry, no uncertainty, no sleepless nights.

When it comes to divorce, there is also something to be said about the quicker deal. Divorce litigation is costly. Trials involve time, money, the uncomfortable feeling of sitting on a witness stand and testifying about the details of your married life to a room full of strangers. An intelligent settlement can result in more money in your pocket even if you get a little less, because you have saved additional legal and expert fees needed for additional litigation, not to mention the loss of time, the uncertainty and the loss of control inherent in litigation.  The goal is not to settle at any price but to consider the pros and cons of settlement.

Before one can settle intelligently, however, one needs full information. Many come to a divorce with full knowledge of the assets and liabilities of the family.  If the parties are wage earners,  the economics are ripe for intelligent discussion on day one. If there has not been a sharing of information during the marriage some work may need to be done before settlement can be discussed. It must be remembered that regardless of the nature of the marriage, the economics are controlled by law and not emotions.  Judges rarely care about the “bad spouse” ,  so those who seek an economic up-tick based on allegations marital fault are likely going to be disappointed, and poorer, at the end of the process. Think smart and settle smart. You may need your marital money to live, retire or simply to enjoy a better life.  After all, divorce is about fresh starts.

If a business needs to be valued, that must be done before a deal can be made unless you are inclined to forego the cost because the business is too small, not profitable or there is a more creative solution. The point is settlement comes from knowledge — knowledge of the assets but also knowledge about what it is that you want.  Some say, “I want everything I am entitled to.”   That is a fair and reasonable objective. If it is your objective, you need knowledge of all the assets and liabilities and their values before you can settle. Economic issues should be settled on a non-emotional, informed basis. The point is you are unlikely to get your “pound of flesh” and even if you do the cost might be paying two pounds of flesh.

Custody of children is a far less objective or analytical process. It is often hard to take emotion out of the equation when it comes to custody. Your reason for divorce may touch on issues you believe disqualifies your spouse as a parent.  In extreme cases you may be right. However, once again there is a cost to custody litigation and the children pay a portion of that cost. Consider how the economic uncertainty of divorce affects you.   Now consider how not knowing where your child is going to live or how often your child will see you and your spouse, and consider how that same lack of knowledge if affecting your 9 year old. Custody litigation is frequently necessary and the safety of the kids are at risk. Even in the usual case kids need continuity and consistency. It is my firm belief that in most cases the parents know what is best for their children, and if they look at the issues objectively they will come to an agreement on custody that is best for their kids. This is an area where parents generally know all that they need to know if they are honest with themselves.

The court system in New Jersey compels the divorcing parents of unemancipated children to attend parenting classes early in the process as well as custody mediation in the hopes of getting the issue custody off the table early on. What’s best for the children should not be a bargaining chip between the parents on the economic issues. On the other hand, where there is domestic violence between the parents there is a presumption that a person who is violent with his/her spouse is violent to the children.  Bad marriages can lead to more expensive and difficult divorces unless the violent spouse acknowledges the need for change.

The system offers may avenues for alternate dispute resolution and you should discuss those options with your lawyer. I adhere to the adage that, “Nothing is settled until settled right.”  But I would add to that that the case should be settled for the least possible cost.