I was recently asked by a client, what we needed to do to finalize the divorce. I informed my client that to finalize the divorce we needed to have a marital settlement agreement, drafted and agreed to for the Judge to review and approve at the prove-up which is customarily the final court date in a divorce.
A lot of time settlement makes sense because the two parties maintain control over the outcome of the case. Although they may not achieve every objective on their wish list, they typically reach more of their goals than if they permit the court to decide and the objectives they have relinquished, they are still the person to decide to relinquish the objective.
Before an attorney can fully assist a client in determining a proper settlement, he or she must help the client understand what assets and debts comprise the marital estate. The best way to do this is have each party complete the full discovery process. Although this can be taxing and time consuming for clients, as they are required to collect all of the requested documents, it is strongly encouraged so that both parties can be familiar with the other party’s assets and liabilities. Moreover, full and complete discovery permits the client to settle with peace of mind, knowing all that may be gained and lost in the negotiation.
After discovery is complete, it is important to discuss various prospects for settlement and aligning possible expectations with reality for each party. Sometimes party’s will negotiate by sending a draft marital settlement agreement back and forth between each other, highlighting and negotiating the different areas of the agreement they are not in agreement with. Another possibility is for all of the parties to sit down together and draft the terms, with in person negotiations facilitating the process.
It is essential, nonetheless, that resolution not be rushed and that the client make a thoughtful review and acceptance of the deal. The attorneys involved, must ensure that the client fully understands and is comfortable with all aspects of the resolution of the matter even if it is not their desired outcome because in the end the Court will be sure to enforce the agreement after it is entered by the Court.In some cases, the divorce is too contentious to try and come to a settlement agreement outside of Court but when it is a possibility between the parties, I think it is a good opportunity for both parties to be able to control how their divorce ends.