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Lynch & Owens Divorce Series: Step 9 – Divorce Negotiation, Settlement, and Separation Agreements

Massachusetts divorce lawyer Carmela M. Miraglia discusses the negotiation, settlement and separation agreements in a Massachusetts Divorce in Step 9 of the Lynch & Owens Divorce Series.

Most Massachusetts divorce lawyers will tell you that 99% of divorce cases settle through the entry of a separation agreement. A more accurate figure is probably that 97.5% of divorce cases involving lawyers settle, which means that perhaps only one in forty divorces an attorney handles will result in trial. Which means that negotiating, settling and drafting separation agreements in divorce cases is among the most important services a divorce attorney provides.

I have explored the technical requirements of a Massachusetts separation agreement in prior blogs. In this edition of the Lynch & Owens Divorce Series, however, I will focus on more practical aspects of the negotiation and settlement process. The first item up for discussion is timing.

Table of Contents for this Blog

  • Timing: When do Divorces Settle?
  • How Does it Work: Summary Settlement Offer vs. the Full Blown Draft Agreement
  • A Separation Agreement: What Does it Say?
  • Negotiation: How Does it Work?

Timing: When do Divorces Settle?

A typical, moderately contested divorce case takes about a year from the filing of the Complaint for Divorce to the entry of Judgment of Divorce Nisi which occurs upon a judge’s approval of a fair and reasonable separation agreement. Many divorces finish up faster than a year, some take a lot longer. A year is typical.

If you peruse the Lynch & Owens Divorce Series, you will see that I have reviewed the divorce process in sequence, starting with your initial attorney consultation, proceeding through the filing of the complaint and motions for temporary orders, followed by attending the Pre-Trial Conference and Status Conferences, before heading towards the home stretch with divorce discovery. Let’s look at the timing of these events in a typical divorce in timeline fashion:

Day zero – your initial consult with an attorney.

Day 7 – the filing your complaint for divorce.

Day 21 – service of the complaint for divorce on the opponent.

Day 45 – hearing on a motion for temporary orders.

Day 60 – discovery should be underway

Day 120 – final settlement negotiations underway

Day 180 – pretrial conference

Day 240 – status conference 1

Day 300 – status conference 2

Day 380 – first day of trial

Day 450 – receive judgment

Intensive settlement negotiations are often triggered by the pretrial conference, which is an event scheduled by the court that sometimes does not occur for 9 to 12 months after the complaint for divorce was filed. Regardless of when the pretrial conference takes place, it is not unreasonable for parties to begin circulating settlement options several months after the complaint is filed.

How Does it Work: Summary Settlement Offer vs. the Full Blown Draft Agreement

Obviously, a divorce attorney tends to discuss settlement positions with opposing counsel during their interactions over a case. At some point, however, settlement offers must be reduced to writing. This generally means one of two things: (1.) a summary settlement letter or (2.) a full blown draft separation agreement. There are pros and cons to each approach. The big upsides to summary settlement letters are cost, speed and flexibility. A full blown separation agreement is often a 20+ page document, where a summary settlement offer may be as short as one page. The goal of the summary letter is to exchange positions on the major issues in the case. A summary offer often acknowledges that there may be details not addressed in the letter, but seeks to reach “agreement in principle” on major issues. Such a letter can be produced fairly quickly and at a lesser cost compared to a full blow separation agreement.

The primary upside to a full blown separation agreement is obvious: completeness. A draft separation agreement enables the parties to compare detailed positions and leaves little to nothing to chance. It also enables attorneys to exchange “red line” versions of a draft agreement, in which each side’s changes are recorded in an electronic document that (hopefully) evolves into a final settlement agreement over time. The downsides of a full blown draft agreement include: time (since the party making the proposal must determine his or her position on each and every issue and the attorney must prepare a 20+ page document); cost (longer documents take more time, resulting in more legal fees); and scenarios in which parties feel overwhelmed by the large number of details to assess and respond to. A shorter summary offer is simply easier to digest.

A Separation Agreement: What Does it Say?

I have covered the technical aspects of what makes a Massachusetts separation agreement in a prior blog. Suffice it to say, the agreement must address all of the actual and hypothetical issues arising out of the parties’ divorce. Accordingly, every divorce agreement should address alimony, even if the parties have no intention of every paying alimony to one another. Likewise, the agreement must formally address the division of marital assets, even if the parties don’t own anything.

A Separation Agreement really is a means to an end of your divorce case. It’s an opportunity for the parties (the people who really matter in this divorce) to create a plan for their family going forward (instead of leaving it to a complete stranger – the judge). The resulting document offers a type of roadmap for the way that the now broken family will and must interact in the future. The Agreement will detail how tangible items (your stuff) will be divided; if there is an alimony component, how much and for how long will be articulated (and often times unmodifiable – set in stone if you will); a parenting plan (some more detailed than others – and I say the more comprehensive the better); who pays for what (marital property isn’t just about assets, debts are covered, too); and things like health insurance, life insurance, pensions, holiday schedules, college expenses – the list goes on and on. In a nutshell, the Separation Agreement covers the aspects of a family’s every day life from expenses to birthdays to living situations. The purpose is to have a clear plan, articulated and memorialized; and here’s the kicker, it’s enforceable (if someone fails to follow the agreed upon plan, there are consequences).

Negotiation: How Does it Work?

Separation Agreements are unique and specific. Although a Separation Agreement generally has similar parts in terms of format, the content is highly specific to each family. In order to fashion an Agreement that is relevant to your divorce and your family, your choices, lifestyles, morals, and all of the things that make you a unique family made up of unique individuals really matters. That said, often times the two parties to the divorce (those developing the Agreement) aren’t always on the same page in relation to these issues. Negotiation is the process by which the parties exchange information – information that illuminates their wants, needs, and desires – compare and contrast, and ultimately, compromise.

Here’s an example: Imagine that you have a Christian divorce (parties who celebrate Christmas each year), and these parties have children. Of course each of the parties, mom and dad, want to celebrate Christmas with their child(ren) (and often, want Santa to visit their house and have the little ones’ visions of sugar plums dancing in their heads on the bed that is in that parent’s respective house) but how can each of the parents, who live in different houses, share a single moment? The answer is painfully obvious, they can’t. Compromise is needed. Generally, a separation agreement will articulate the “how to” for issues like these and attempt to reach some fair compromise. For instance, the parties may alternate odd and even years (mom’s house on even years, and dad’s house on odd years); or a split schedule (mom’s house until noon; dad’s house from noon until 8 pm); or both! That’s the beauty of negotiating a separation agreement; you get to state and to choose what works best for your family, and after all, who knows your family better than you?

Compromise isn’t easy, it takes work, and discussion, and understanding. This is where negotiation comes in. An attorney will deliver your wants, needs, and desires to the other party either directly, if they represent themselves, or through their attorney, and vice versa. The information is exchanged, compared, contrasted, and then compromised – or not. This is negotiation. Negotiation does not have to resemble a prime time interrogation; there often isn’t a need for hostile exchanges and hot seats. Your attorney is your conduit for stating your position, reviewing the position of the other side, memorializing those points where the parties are in agreement, and ironing out the remaining issues, usually through an exchange of documents, discussions, and settlement proposals. It’s work, and it can sometimes be hard and painful, there’s no doubt. But negotiation, when done in good faith, more often than not results in positive and fair outcomes.

For additional installments of the Lynch & Owens Massachusetts Divorce Series, please visit the main series page.

About the Author: Carmela M. Miraglia is a Massachusetts divorce lawyer and Cape Cod family law attorney for Lynch & Owens, located in Hingham, Massachusetts and East Sandwich, Massachusetts. She is also a mediator for South Shore Divorce Mediation.

Schedule a consultation with Carmela M. Miraglia today at (781) 253-2049 or send her an email.

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