A brief guide to settling a divorce or custody case

Benefits of settlement

Parties are often happier when they can reach an agreement outside of court. Most people prefer to have the final say on what happens in their divorce or custody case instead of leaving those important decisions up to a judge.

Before you engage in settlement conversations, it is helpful to get advice from an attorney so you can make informed settlement decisions. The Commons is able to offer coaching services to clients who are interested in settling their case.

Do you have the information you need to make an informed settlement decision?

Before engaging in settlement negotiations you need to know: (1) the laws that apply to the facts of your case, and (2) detailed information about the other party. The next sections talk about why it is important to know this information before engaging in settlement negotiations.

Information about the laws that apply to the facts of your case

Before engaging in settlement conversations, you need to understand the laws that apply to your case in order to understand if the other partysettlement proposals are fair. 

You should weigh any proposed settlement offers against how the issue would be decided if you took your case to trial. If settlement proposals are significantly less favorable than the outcome you are likely to receive at trial, you may want to consider going to trial instead of settling your case. However, sometimes people are willing to settle for unfair terms in order to avoid the time and stress involved with going to trial. When deciding whether to settle your case, you must make a decision that feels right to you.

If you are unfamiliar with the law, review the rest of this blog for information on the laws that apply to custody, parenting time, child support, spousal support, and division of property and debts. If you still have questions, an attorney at The Commons Law Center may be able to provide you with information about the laws that apply to your case. Request affordable legal help from The Commons Law Center.

Information about the other party

You also need to know detailed information about the other party, such as where they work, how much they earn, where they live, whether they have a criminal history, how much debt they owe, what assets they own, etc. Not all people know this information about their partnersespecially if financial abuse was present in the relationship or if you were separated for a long period prior to starting your case. 

If there are important things you do not know about your former partner, you should request discovery from them before engaging in settlement talks.

Methods of reaching a settlement agreement

There are several ways people reach settlement agreements in family law cases:

  • Informal conversations. Parties can talk to each other or exchange written settlement proposals to try to reach an agreement.
  • Lawyer involvement. The parties lawyers can talk or exchange settlement proposals to try to reach an agreement.
  • Court mediation program. Parties can use the free mediation service through the courts to reach a partial agreement on custody and parenting time.
  • Private mediator involvement. The parties can hire a private mediator to help them reach an agreement.

Should you hire a private mediator?

Hiring a private mediator is a good option if you would like help from a neutral party in mediating an agreement.

Considerations for hiring a private mediator

If you decide to hire a mediator, you should consider the following when choosing a mediator:

Look for mediators who are attorneys, judges, or who have a legal background. These mediators should know the laws that apply to your case and will try to encourage parties to reach a fair settlement. Attorneys or judges will also be able to help you formalize your agreement into a judgment, which you can then file with the court.

X Avoid people who do not have legal training or a legal background. There are many people out there who call themselves mediators. These people may be counselors or people who completed a basic mediation training. However, if these mediators do not understand the laws that apply to your case or how the court system works, it is unlikely they will be able to help you reach an agreement that is fair or that is enforceable. They also will not be able to help you finalize your agreement through the court.

What if you only reach a partial agreement?

It is okay if you and the other party cannot settle all the issues in your case. For example, parents may
be able to reach an agreement on custody and parenting time using the courts free mediation
program, but then are unable to agree on other issues like child support or the division of property and debts. 

If parties reach a partial agreement, then they will only need to have a trial to address the things they could not agree on. The parties can tell the judge at the beginning of trial that they have a partial
agreement. The judge will then focus on the things the parties need help resolving.

Agreements made outside of court

If you reach an agreement with the other party outside of courteven if its a written agreementit is not enforceable by either party unless it is incorporated into a formal judgment and signed by a judge.

How do you finalize a settlement agreement with the court?

There are four steps to finalizing your settlement agreement with the court:

  1. Incorporate your agreement into a Stipulated Judgment. A judgment is the legal document that concludes your case and contains the terms of your divorce or custody agreement. Stipulated simply means the judgment was agreed upon by both parties.
  2. Both parties must sign the stipulated judgment.
  3. The stipulated judgment must be filed with the court, along with a Declaration form that tells the court why they should sign the judgment. A Declaration is a legal word for a sworn written statement that is filed with the court.
  4. Lastly, you need a judge to sign your stipulated judgment. Once a judge signs the judgment, it is legally enforceable and your case is concluded.

Who can help you prepare a stipulated judgment?

Any of the following people can help you take your agreement and turn it into a stipulated judgment:

  • An attorney. If one or both parties have an attorney, then the attorney will usually draft the stipulated judgment, assist parties with signing it, and then file it with the court.
  • Private mediator. If you hired a private mediator, who is also a lawyer or judge, the mediator can likely help you draft the stipulated judgment for you to sign and file.
  • Family law facilitator. If both parties are unrepresented, they can prepare the stipulated judgment on their own and then ask the family law facilitator at the courthouse to review the judgment to make sure it was completed accurately. The family law facilitator program is free. (see Finding free or affordable legal help section).

Finding court forms to finalize your case

If you plan to prepare the stipulated judgment on your own, you can find the court forms you need on the Oregon Judicial Department family law forms website. You will need to complete a Declaration form and then also a General Judgment form:

Declaration Supporting General Judgment:

General Judgment

The Commons Law Center Blog is for information purposes only. It is not legal advice.

posted March 3, 2023

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