Many people believe that their family law case will only end after a trial before a family court judge, and that as parties to the case they do not have a great deal of control over the outcome. However, whether a divorce, paternity or modification case, the parties have a great deal of control over the outcome – through a settlement.
After one party initiates suit, and the other party enters an appearance, the court will set an initial settlement conference to review the status of the case. In some counties, the courts call these meetings case management conferences. Generally, the court will gauge the degree to which the parties are seeing eye-to-eye on the matters raised in the pleadings and inquire as to whether the parties have made any effort to settle outside of court. If the parties are contentious and far apart, the court will set a discovery schedule and place the matter on a trial docket.
The first settlement conference gives the parties a chance to really discuss the likelihood of settling the matter through a Marital Separation Agreement (in cases of divorce) or a Consent Judgment in other matters. In a written settlement agreement, the parties set forth all of their terms on the issues and sign before a notary and with their attorneys also signing. As long as the court finds the settlement made freely and voluntarily and with terms that are not grossly unreasonable, the court will enter a judgment based on the settlement.
Settlement can take place at any time after these initial proceedings and can happen through a series of correspondence between attorneys, meetings between the parties and their attorneys, or a formal process known as mediation. In mediation, the parties choose a neutral, usually an attorney or retired judge, to meet with the parties and work toward a mutually satisfactory outcome. The mediator will meet with the parties together and separately and almost always without their attorneys. Through a series of meetings, the parties make their positions known and the mediator sets out a basic understanding of how Missouri law treats the issues in dispute. If a party is overly demanding, the mediator will try and steer that party toward a more conciliatory position.
As a case proceeds and the parties have several settlement conferences, the court may intervene in ways that help settlement. Each judge has a different position on how actively to encourage settlement; some will give the parties a clear idea of an outcome based on the facts presented by the attorneys, others will remain fairly reserved and let the parties work the matters out, leaving any hearing of evidence to an actual trial proceeding in open court. In general, judges prefer the parties reach a settlement because the parties will likely be happier with that outcome.
A party should only settle when he or she feels that the terms are the best under the circumstances after discussing them with counsel. While the advantage of settling before trial is the certainty of an outcome, it may not be the “most” a party could achieve if the party went to trial. However, going to trial poses risk, and the court may find for the other party or enter a judgment neither party particularly likes.
If you have more questions about settlement of a family law case, contact us – we can help.