Mandatory Settlement Conference... again

[Before you can make things better, you have to stop making them worse...]

Two days from now I have the often postponed mandatory settlement conference.  I am In Pro Per and he is represented.  He hasn't filed a MSC brief at all, ever, because the minute we actually have a MSC, I can file a request to go to trial.  And he doesn't want the case to close, ever.  Very, very controlling.  His tactics are, of course, exactly the same as they were during the marriage.  He has nothing else.  I really hope the judge will see that there is no point to further delay. If he agrees with me, I could be fairly free in about 45 days.  That would be wonderful.  If my ex tries to stall the sale of the houses, he will find I am less than cooperative with anything he wants.  But probably he will respond to a lot of positive attention at that point.  We will see.

[sad but wiser]

Two days from now I have the often postponed mandatory settlement conference.  I am In Pro Per and he is represented.  He hasn't filed a MSC brief at all, ever, because the minute we actually have a MSC, I can file a request to go to trial.  And he doesn't want the case to close, ever.  Very, very controlling.  His tactics are, of course, exactly the same as they were during the marriage.  He has nothing else.  I really hope the judge will see that there is no point to further delay. If he agrees with me, I could be fairly free in about 45 days.  That would be wonderful.  If my ex tries to stall the sale of the houses, he will find I am less than cooperative with anything he wants.  But probably he will respond to a lot of positive attention at that point.  We will see.

[ForeverDad]

In cases like ours, most early mediation or settlement attempts fail.  They're too willing to play games or put you under more pressure than they have, as you've learned.  Only where the options are limited, such as with an impending hearing or looming trial date will you get serious talks, and sometimes not even then.

In my case, my ex totally ignored cooperation with mediation and settlement conference.  I was only 21.5 months into my divorce case when I arrived at the court house on Trial Morning and was greeted with the news that ex wanted to settle... . only about 5 minutes before the trial was to begin.  So yes, try to get past these endless delays, keep the case moving forward.  Meanwhile don't give up or give in.  Find ways to get past the repeating carousel and get to the judge.  Courts seem to allow delays since to the professionals it's just another day at work, another rescheduled date.  For you it's your life.

[Matt]

Do you have a proposal ready?

[ForeverDad]

Frankly, it's very possible you would get better results with a judge's decision.  However, judges allow delays such as with continuances and lots of formalities.  Partly because everyone's rights have to be observed, regardless whether right or wrong.  Partly because the court schedule are busy.  Partly because the judge wants the two spouses/parents to find their own resolution since it can be better than a win/lose order.  Partly because if a judge can get a settlement and avoid having to make a decision then a possible objection or appeal is avoided, settlements can't be appealed.

So typically an accepted offer or settlement now would be too lopsided in the disordered spouse's favor.  The closer you get to a major court hearing or trial, the less unreasonable it becomes.  However, a judge is more likely to issue a better decision better than your ex would settle.  The difference is that you can't know for sure what a judge might order, good or bad, they seem to avoid wanting to make an order where one spouse 'wins' and the other 'loses', while at least a somewhat reasonable settlement is a known quantity.  Six of one, half a dozen of the other.  Use your best judgement, supplemented by legal advice and experienced peer support.

[sad but wiser]

Thanks Matt and Forever Dad

Yes, I have prepared a settlement offer.  Two different ones actually.  The latest was not as nice to him as the first, but absolutely fair. (legally - his rendition of fair is that I remain his slave-girl mom for life)    I have prepared my brief very thoroughly and included my income and expense statement, discussed all the aspects of the case and a suggested division of the community property and debts.  The hardest part lately has been that his attorney is helping him drag things out by not filing the requisite paperwork.  This can't look good to the judge, but he gets away with it.  I will go in, refuse to talk to his attorney in the hallway and object when he asks the judge to continue.  I surely hope the judge hears me this time.

[ForeverDad]

I will go in, refuse to talk to his attorney in the hallway and object when he asks the judge to continue.  I surely hope the judge hears me this time.

1. While continuances are often granted upon request, it's usually only once or twice before the judge starts getting peeved and tells the slow lawyer to get moving.

2. Continuances are less likely to happen if you object to them.  If you're silent or passive then the judge can assume you're okay with another delay.

The reason no one seems to object to continuances is because it is "professional consideration" between lawyers, as in, work with me here and I'll work with you at another time.  However, in high conflict cases continuances are too often used as a delay strategy and not for real need.

I recall that my ex's lawyer filed for a pre-trial continuance claiming ex was under a doctor's care for pain.  Judge didn't even give my lawyer a chance to object, said No, said it was a pre-trial and only the lawyers needed to be present.

It's okay to speak up and object.  You shouldn't timid, passive or inclined toward inaction.  (Perhaps not the other extreme and overly aggressive either.)  But you do need to be assertive and proactive.

[Matt]

So you are prepared to settle, but the other party may not be.

You could say, "Your Honor, since the other party has not prepared any proposal, I ask that the court consider this proposal, which meets all our state's requirements and is fair to both parties."

It's not likely, but possible that the judge or mediator might ask the other side, "Why not?".  They will be on the defensive.  You can explain and support each part of your proposal, and the other side may have to agree to it or offer alternatives on the spot.

[ForeverDad]

Be prepared to hold some things back.  The other lawyers will try to get some items added to any offer you make.  So if you've held some things back, that gives you some room to negotiate.  That what negotiation is all about.  They won't care that you state "This is my best and last offer, it won't get better than this."  They will still want more.  Leave some wiggle room for a few tweaks.

[sad but wiser]

Thank you, all of your input and support is very valuable to me! The other side (petitioner btw) asked for a continuance.  I objected, sited that it had been continued four times, that the other side had not filed a brief, that there was no income and expense statement, that it is in the best interest of the other side to never settle this, because he gets a large amount of spousal support, that the thing has dragged on so long there are no longer minor children, so a very simple split, that there is only the issue of separate property, and how to divide community property to really discuss, that the court would decide spousal support (or not) on merit of the factors (california) etc.  The judge really lit into the other attorney and my ex saying that it looked to him like I was straight-forward and they were playing games.  He ordered that the record show "no more continuances" and allowed this as the "final one."  Threatened to divide the property himself and told his attorney "I am asking for specifics and you cannot even articulate what you are talking about."  So, while I am unhappy with the continuance, I am feeling a bit vindicated.  We shall see... . I feel that I should have asked for sanctions, but I suspect I would have been told it was "premature."

Thank you again.