My Settlement conference: This week

[Forestaken]

This week, I will have my first settlement conference.

Facts:

24 year marriage. She left for almost a year (DIF that lasted 10 months).

S22, D19 both in college

I'm paying S22 rent.  S19 lives with me.

Oct 2012: Pendente Lite order gave me exclusive use of house. Gave her $1000/month and the requirement to get a job. Come back in 3 months.

Jan 2013: She got no job. Still living with her sister.

Major assets: House: $40K equity, her stock account, my 401k and pension. Some debts <10K

I am willing to give her as much as the house as she wants as long as she gets none of my pension.

I'm eligible for full pension in 18 months.  I doubt/hope not that she or her L understands the impact the pension fund will pay out.

Input plz

[Matt]

Do you have a lawyer?

Have you found your state's guidelines for alimony?

It seems sensible for you to stay in the house, since one of the kids is living with you, and if you can make the payments.

I would suggest you ask the other side if they want to make an offer, or make an offer based on your state's guidelines.  The pendente lite order suggests that $1,000 a month may be considered reasonable by the court, given both your incomes.

In most states, assets just get split, except those brought into the marriage.  If you keep the house, that puts $40k on your side, so the other assets will have to be split in her favor, to balance that out.  Or you could take the debt to make it balance out, or give her extra money for a period of time til it's worked out.

If her lawyer is competent, they will require you to provide all the information about your pension.  It's the lawyers' jobs to get all the financial information out in the open so things can be split evenly.  Your lawyer will probably expect you to be open about financial stuff too.

[Rose1]

With your pension, if applicable, make absolutely certain that she signs the appropriate documents on the spot. The law is still in  the dark ages and allows a previous spouse pension privileges unless she signs them over. BPD's never sign once the moment is past. We are stuck with this at the moment.

[Forestaken]

 I have a good lawyer.  

What worries me is that in the past 20+ years, all expenses have been paid by me, the assets I brought into the marriage have been spent. None by her.  

I did co-mingle into "her" stock account 13 years ago when I switched jobs and placed funds into her account.  In my state, anything after 5 year is considered long term marriage.  Generally in my state she will get 30% of my gross or in reality 50% of my net.  However, due to our mortgage that will leave with nearly not enough to leave on.

If you ask my preference, I'll give up the house to keep her out of my pension.  My L will go after her stock account as a counter to her need for support. "If she has $$$ then why does she need $$/month?"

What I am hoping for is a lump sum offer.

[Matt]

If the funds were mingled, you can still try to show what is yours.  For example, I had an account that had less than $100 in it, and I used it to deposit a large sum that was mine, not ours.  I shouldn't have done that - I should have kept those two amounts separate - but the court said since almost all the money was mine, in the settlement we should just move $50 (half of what was in that account before I put in the large amount) into my wife's column.  That co-mingling wasn't a problem.

So you can try to sort it out, and if you can show very clearly what is yours, and what is "community property", the court might accept that.  But if it's messy, the court is likely to say it's all community property.

Don't wait for the other side to figure it all out.  You figure it all out.  Make a settlement offer that you believe is fair and in keeping with your state's guidelines.  Be prepared to explain every penny - how you did all the math.  Make the offer in writing.  Then if the other side doesn't respond positively - they don't accept your offer and they also don't make a helpful counter-offer - you prepare for trial.

[Forestaken]

Her atty made an offer:

50% of all assets.

50% of my retirement fund

she keeps 100% of her assets

For now she get  of less than the Va required amount for alimony

When I retire (18 months), she gets 100% of the pension.

My L don't worry negotiations are not over. They're aiming high

[Matt]

Have you made an offer yet?

What do you think is the down-the-middle solution - where the court would most likely rule on each issue?

Have you looked at your state's guidelines for alimony and division of assets?

[gina louise]

 Matt,

Question about settlements... .  is there a number of "good faith" offers either party should make?

So far my HUSBAND L has sent one (low balled it),

My lawyer responded with a higher counter offer-normal, I guess, but still within guidelines.

then it took 3 weeks just to get some pay stubs and info from HUSBAND and his  lawyer.

My lawyer has just sent over our second (lower) offer and it's reasonable. HUSBAND rarely feels like working an 80 hour pay period.

If we don't get a reply by Jan 25th we end up going to court for a temp order of support. But I'd prefer not to.

Is it common to go back and forth several times like this?

thanks,

GL

[Matt]

If there is progress toward a settlement - maybe the two sides are getting closer on all the issues, or at least some of them - then it can be fine to continue like this - probably cheaper than going to trial.

Maybe you settle most issues this way, but some are really difficult.  Then you sit down together and see if you can get creative to resolve them somehow.

But if the offers going back and forth don't seem like they're getting you closer to a settlement, it might be best to quit negotiating and focus on preparing for trial.

A really key point - which all lawyers should know, but some don't - is that you never "counter your own offer".  If the other side doesn't like your offer, they need to propose something.  Don't give them a better one, or they'll keep rejecting your offers, and you'll keep giving them better ones - not a good approach.

[gina louise]

Matt, ,

Forestaken-sorry to butt into your thread... .  

My lawyer based her initial counter-offer offer on the pay stubs I had and his contract proving H's income.

since then he's gotten a raise and a new contract-but hasn't provided that info yet.

She had to revise after the other party provided (finally) more updated info-which I felt was all above board and reasonable.

I believe we are close to a final figure. well, closer than before.

Ours seems easy- temp support and some alimony for a term. it's a difference of 6K that he's digging his heels in over. But Money is a trigger for him.

MY lawyer is ready to go to trial. HUSBAND sold his house one week after filing for divorce, which violated the express terms of the dissolution. I don't think he's thinking of the ramifications.

thanks,

GL

[Forestaken]

In our case no one really wants the house.  The main asset here is my future pension.

My L proposed small alimony now and splitting everything including my pension.

Once the pension payment kick in, that will be her support.  I will cease paying alimony to her directly.  Not happy but that gives me some funds coming in.

She wants it all of my pension. 

If we go to court my L will indicate negative contribution to the marriage.  My adult children will testify of my total commitment to them and her abuse,  Depending on the judge, the outcome could go either way.

The last judge told her to get a job. I know she has made no attempt.

[DreamGirl]

The last judge told her to get a job. I know she has made no attempt.

Does she have any job skills?

My husband's ex-wife wouldn't get a job either during the divorce proceedings. He paid her nearly $2000/mo in child support/alimony. He also was expected to pay the mortgage of the marital home. She wasn't inspired to get a job. Why would she?

In the end, however, it became her choice. It stopped being his responsibilty to maintain her lifestyle.

My state has a strange way of looking at alimony and the calculation is more of a "guide" - not an absolute like the Child Support calculation.  Even though she didn't have a job, they took her degree and considered what her potential job earning would be and calculated based on that. It dropped to $1,100/month and alimony was waived if he took on all the marital debt.

He also had to buy her out of his pension.

She wants it all of my pension. 

I don't get how that makes any sense - she gets it all and you get none?

Is her attorney suggesting that this is a possibility?

[Forestaken]

She has a degree from a University in Mexico, accredited in the US (her brother-in-law / American) got his medical degree there and he practices here.  Could she get a job? Yes, Want to: No!

How did your h buy her out of his pension?

[DreamGirl]

How did your h buy her out of his pension?

He offered an amount after an accountant review - to place a value on it based on current value, amount of time married, amount paid in, etc.

They also were only married for 8 years and she wanted money. Now. He wouldn't retire for another 25 years-ish.

His attorney really low balled it and she amazingly took the offer.

She was also more focused on the child support. It was the guaranteed way she'd be getting money for the next 16 years.

So it's probably apple and oranges into comparison to what you're dealing with.

I do think that her ability to work and earn her own retirement would be a factor.

Even just bringing up the inheritance (even though you can't touch it) would be helpful. Judges are human too and having her cry "poor me" doesn't ring as loud when she has a substantial amount of money to tap into.

~DreamGirl

[ForeverDad]

I do think that her ability to work and earn her own retirement would be a factor.

Even just bringing up the inheritance (even though you can't touch it) would be helpful. Judges are human too and having her cry "poor me" doesn't ring as loud when she has a substantial amount of money to tap into.

So true.  Even if the judge rules it wasn't commingled with marital assets, at least it's not hidden.  Jusdge are allowed "judicial discretion" and can bend the application of the rules, guidelines and polices.

She has a degree from a University in Mexico, accredited in the US (her brother-in-law / American) got his medical degree there and he practices here.  Could she get a job? Yes, Want to: No!

I recall reading about a precedent set in California where a doctor quit his practice and started flipping burgers in an effort to avoid child support or alimony. Judge lambasted him and 'imputed' his reasonable or potential income when making calculations.

Also, since it is easy for a person to say they can't find a job, there are a thousand ways a person can sabotage their job searches and job interviews and the courts ought to realize it.  Sure the economy isn't great, but that shouldn't be interpreted that a person will never find work.

Be sure to push for 'imputed' in your case.  Just because she didn't have to work before doesn't mean she doesn't have to work now.

More and more states are changing to the goal of alimony only being short term to allow the disadvantaged spouse to get settled in post-marriage life, and perhaps also to get a degree, career training or a job.  No, not an 8-12 year degree.  A 2 year degree at a local inexpensive college is typical.

[Forestaken]

Update:

The court order in Oct 2012, stated I pay 1K/month (low) and she gets a job (no attempt)

My s2bx got a new lawyer earlier in Jan 2013, and her L met with my L in late January.  Her L indicated that they want to end this soon.  My s2bx and her eviler sister are suing their brothers for control of a sizable land inheritance in Mexico.  They were in the middle of the lawsuit last year when I filed, stalling their lawsuit.

We're offering $80k for her to walk away from anything and everything (no alimony).  Plus, she keeps the co-mingled stock accounts $60K+

I get the house, gain a second mortage, obiligated to my dad for $40K, lose my 401K, get the debts but retain 100% of my pension.

[Matt]

Have you made that offer in writing?

If the other side is eager to settle - and they have a practical reason to settle soon - it may be best to let them make the offer.

If you have already made the offer in writing, don't make another one.  Let them respond in writing;  they can either accept your offer or make a counter-offer.

[ForeverDad]

If offer already made, was it stated that it was final, not up for negotiation?

If not yet made, Matt stated a good point.  While our impulse is to be fair, if making an offer or counter-offer you generally hold something back since almost always the other side wants to haggle for more.  I know you have special circumstances, but just adding as a disclaimer.

[Forestaken]

Not yet,

I met with my L on Wednesday,

Talked with my dad on Thursday

Met with my credit union today

(got all the info)

and emailed my L with what I got minutes ago.

Waitin' and praying.

[Forestaken]

It will be final. 

Given it is extremely doubtful she will remarry, We are looking to get out of any perpetual alimony. 

Factors:

I know she prefers to live in her home country. 

She wants to sue her brothers for denying her share of the inheritance.

The settlement will allow her to restart and have her own business. 

In the long run I will pay more month-to-month than the lump sum offered.

[Matt]

I think what FD and I are talking about right now is the mechanics of the negotiation - not what the settlement should be - you seem to have a pretty good, clear idea about that - but how the negotiations are handled.

We often assume our attorneys are skilled negotiators.  Some are.  Many aren't.  Learning basic negotiation skills is not part of most attorneys' educations.  Sometimes we pay a big price for that.

One aspect is what is known as "countering your own offer".  It's a big mistake!  What that means is, if you have made an offer, and the other side hasn't accepted it or made a helpful counter-offer, it's a mistake to make another, more attractive offer.  Because when you do that, you show them that if they will dig in their heels you'll give them better and better deals.  So... .  they'll dig in their heels.

Since the other party is eager to settle - and you know that she has a very good reason to want to settle - it's probably best to let her make the offer - and make sure it's in writing.  Her offer may be surprisingly attractive - maybe even better than what you are thinking of offering!

If her offer is pretty good but not quite what you hope, you can make a counter-offer, and probably get to a good settlement.

Or if her offer is really lousy, you can say, "We don't think that's a good offer at all.  You'll need to do way better than that."  Let her counter her own offer!

The party who is most highly-motivated to settle, should make the offer.  In this case, I think you both want to settle, but she has a powerful $ motivation to settle soon - the lawsuit with her brothers.

Patience is a virtue!

One more comment - a mistake many of us make at this stage - verbal offers.  Be very careful about verbal offers from either side to the other.

If the other side makes a verbal offer - "What would you think if we offered you X?" - the right response is, "Put it in writing, and we will respond in a timely way."  The reason is, you want to read exactly what they are offering, and you don't want to let them weasel out of it, which they could do if it's only verbal.  And you tell them "we'll respond in a timely way" as a courtesy to them, to let them know you're bargaining in good faith and not jerking them around.  "In a timely way" probably means a few days.

It's always a mistake to accept a verbal offer, because then they can make it a little more favorable to them when they put it in writing - they can walk it back a little.

It's often a mistake to reject a verbal offer too, unless it's really horrible.  Usually better to say, "Put it in writing and we'll respond in a timely way."

Making verbal offers to the other side can also make things worse, by muddying the waters.  But it can sometimes be good to ask, "If we offered such-and-such would you accept that?", and see what they say.  But if they are skilled negotiators, they won't give you an answer;  they'll probably say, "Put it in writing... .  ".

[Forestaken]

New twist: I started receiving strange friend requests on FB from extremely hot women whom I never met.

Then a month later (last week), I saw a white van without markings near my house. When I looked at them, they drove off (I wasn't thinking about my s2bx hiring a PI)

BTW: Offer made to settle on 2/18/2013, still waiting on a response.

[ForeverDad]

 

If the kids are grown, then there's custody issues.  Most states also have no fault divorces, what about yours?  :)ecades ago hidden affairs and sexual preferences were seen as hot-button topics.  These days it's usually allegations of DV or child abuse.

Is this more her wanting to paint you as having abandoned her for other women, that is, seeking sympathy from friends and community or blaming?

I wouldn't doubt but that she's looking for possible leverage in the divorce case and maybe finagle a financial or social benefit if she can entrap you.  Walk carefully... .  and get that license plate number.

[Matt]

BTW: Offer made to settle on 2/18/2013, still waiting on a response.

Offers should not be open-ended.  They should be valid for a week or two - "This offer is valid through 3/27/13."

If your offer didn't say that, that's OK.  You can e-mail them, "We will honor the offer made 2/18/13 through 3/15/13."  After that,  it's off the table.

Sometimes lawyers won't respond to an open-ended offer, because they think if they wait you'll sweeten it.  But if they know it's only valid til Friday, and there is no guarantee you will honor it after that, they may fish or cut bait.

Or... .  You could just contact them and say, ":)o you intend to respond to that in a timely way?"  If they say no or don't respond, then you take it off the table.  If they say yes, you ask when you can expect their response, and if it's reasonable - maybe within a week or so - you say, "OK, we'll look for your response by 3/20/13.  After that the offer is no longer valid."

[GustheDog]

If the funds were mingled, you can still try to show what is yours.  For example, I had an account that had less than $100 in it, and I used it to deposit a large sum that was mine, not ours.  I shouldn't have done that - I should have kept those two amounts separate - but the court said since almost all the money was mine, in the settlement we should just move $50 (half of what was in that account before I put in the large amount) into my wife's column.  That co-mingling wasn't a problem.

So you can try to sort it out, and if you can show very clearly what is yours, and what is "community property", the court might accept that.  But if it's messy, the court is likely to say it's all community property.

Don't wait for the other side to figure it all out.  You figure it all out.  Make a settlement offer that you believe is fair and in keeping with your state's guidelines.  Be prepared to explain every penny - how you did all the math.  Make the offer in writing.  Then if the other side doesn't respond positively - they don't accept your offer and they also don't make a helpful counter-offer - you prepare for trial.

Matt knows what's up.

Ask your lawyer to look into whether any "tracing rules" apply in your jurisdiction.  Different courts have different rules about which methods are acceptable.

[GustheDog]

We often assume our attorneys are skilled negotiators.  Some are.  Many aren't.  Learning basic negotiation skills is not part of most attorneys' educations.  Sometimes we pay a big price for that.

If they are over 40, you can probably assume that they have little to no formal in Alternative Dispute Resolution ("ADR," which includes negotiation, mediation, and arbitration settings).  On the other hand, lawyers who have graduated law school in the past 15 years or so are likely to have adequate-to-solid training in this area. 

[Forestaken]

Is this more her wanting to paint you as having abandoned her for other women, that is, seeking sympathy from friends and community or blaming?

I wouldn't doubt but that she's looking for possible leverage in the divorce case and maybe finagle a financial or social benefit if she can entrap you.  Walk carefully... .  and get that license plate number.

Abandonment for other women.  She always had "preceptions" I was cheating.  I never cheated so she could never prove it.

Offers should not be open-ended.  They should be valid for a week or two - "This offer is valid through 3/27/13."

If your offer didn't say that, that's OK.  You can e-mail them, "We will honor the offer made 2/18/13 through 3/15/13."  After that,  it's off the table.

Sometimes lawyers won't respond to an open-ended offer, because they think if they wait you'll sweeten it.  But if they know it's only valid til Friday, and there is no guarantee you will honor it after that, they may fish or cut bait.

Or... .  You could just contact them and say, ":)o you intend to respond to that in a timely way?"  If they say no or don't respond, then you take it off the table.  If they say yes, you ask when you can expect their response, and if it's reasonable - maybe within a week or so - you say, "OK, we'll look for your response by 3/20/13.  After that the offer is no longer valid."

The offer was open-ended. The letter was sent out on 2/18. I will contact my L on Monday 3/18 for an update and request a deadline.

Given the mystery van and the strange FB friend request, I suspect a pretty sleazy and sloppy Private Investigator. 

Thanks. I will keep ya'all informed

[Matt]

Your lawyer doesn't sound very good if he made an open-ended offer like that.  It's a basic thing.

You'll either have to find a better one, or supervise him very closely.

[ForeverDad]

For all I know, an offer without a specified expiration may be 'okay' in many divorces, lawyers don't seem to focus on the details and usually it doesn't come back to haunt them.  However, in cases like ours, vagueness such as lack of offer end dates just invites delays and other complications.  We have to be proactive, assertive and be watchful for ways we can be saboaged or else something *will* eventually blow up in our faces.

[Forestaken]

Called my L this morning. He's in court.  Spoke to an assistant about the progression or lack of progression of my case.  Can't afford to switch so close to settlement.