July 19, 2022

Should I make an Offer to Settle in my divorce?

If your divorce is in court, making an offer to settle is key.

As you will know from being in the court system, it is not a pleasant experience.

You want to settle your case and get on with your life.

The court system wants the same thing. There are too many people in that system caught in conflict which needs to be resolved. You needed to start Court to get things resolved, and now you need to take steps to resolve Court so you can do just that, get on with their lives.

The court system is designed to encourage you to settle. Whether it is a case dealing with your children, child support, or your house and other assets, the court system is still encouraging you to get things resolved. Right away they recommend you attend mediation where they encourage you to make a proposal to settle. If you have been before a judge in a Conference, they will have encouraged you to make an Offer to Settle.

So what is an offer to settle?

It is your proposal to get your case resolved. It is what you will settle for. We once had a client say, “A Settlement, not a Happyment”, meaning, it’s not everything you want to be happy coming out of court, but it’s what you will settle for.

As with all things in the family court system, there are rules that govern how you deal with them. Rule 18 of the Family Law Rules is where to look for the details on how Offers to Settle work. For these offers, there are formal requirements. They must be in writing. We recommend you use a court form style, as there is no Form 18, and you must sign and date it at the bottom.

Key things to note about offers:

1. You must include in your offer the terms you will agree to settle all of your claims (and the other person’s claims) in the court case.

2. Make each item a numbered paragraph by itself. For example, if there is a child support issue, put the offer you make on this issue into one separate paragraph and then if there is a house issue, make that one separate as well. Then you both can clearly see what you are proposing on each item.

3. Deal with the issue of legal fees, or costs. If you offer that neither side pays any costs to the other, you can put that in and even specify a time limit on that. For example, you can offer that if the other side accepts your offer within one month, then there are no legal costs, but if they accept after that date, then the other side has to pay a certain percentage of your legal costs.

4. Consider if you want to make your offer time limited, such that it might expire totally after a certain date.

5. If you make an offer and do not put a time limit on it, the other side can accept it at any point, so be careful when you make one as you may have to live with it no matter when the other side accepts it if you do not factor in your costs. Consider if you need to withdraw your offer at any point. You can do that, but we strongly suggest you make another one.

6. The timing of your offer. An offer is no good if it is given too late. A motion must have an offer sent at least one day ahead of the motion and at least seven days ahead of a trial.

Read Rule 18 (14) of the Family Law Rules. That explains the consequences of making an offer if you are not able to get your case settled.

When does a Judge see it?

What happens with offers is that they are NOT shown to a judge or filed with the court until AFTER a judge has made a final decision in whatever stage of the case you are in.

If you are at a contested motion or a trial, the judge does not see your offers in advance (that would prejudice you). What happens is this: the judge will make the decision and then ask both sides (after giving you the decision) what your offers were. If you made an offer, you give it to the judge at that point. If your spouse did not accept your offer (or you did not accept theirs) the judge will consider which one of you was more successful in the outcome than your offers.

For example, if you are asking your spouse to pay spousal support, if your offer was to receive $600 per month in spousal support and the judge decided on $800 per month, and your spouse refused your offer beforehand, then you “win” and are entitled to ask for your legal fees to be paid. However, if your spouse offered to pay you $850 per month and you rejected the offer beforehand, then you may end up paying some of your spouse’s legal fees because the judge gave you less than they offered, and therefore they “won”- even though the court awarded spousal support. Costs can be very tricky.

You must be very careful when looking at the offer you make and the offer your spouse makes. Both of you run the risk of paying a large amount of your spouse’s legal fees (plus any of your own) if the judge decides one of you was more successful in your offer than the other person.

We can help you draft the offer and answer any other questions you may have. Just book a consult and we can lift the burden from your shoulders.

© 2022, FamilyLawAdvisor