Most parties with a divorce or family law matter want to settle their case outside of court. Therefore, having multiple court dates, a prolonged litigation process, and a trial is undesirable for most.

To attempt to settle the case, most engage in some settlement negotiations. Settlement negotiations can involve written letters that are exchanged between the parties. Sometimes, parties go to mediation to settle their case. In other instances, parties may even try collaborative law before filing a family law case.

When settlement efforts are not fruitful, the case ultimately has to be decided in court. Sometimes, a judge might help the parties settle a pre-trial or settlement conference before a trial. But that is not always successful.

What Happens When One Party Will Not Negotiate in Good Faith?

Unfortunately, both parties do not always negotiate in good faith. For example, it could be that one party is not responsive or receptive to settlement negotiations. In other words, when settlement offers are sent, responses may not always be received.

Other times, a party might respond to the settlement offer, but the terms are so outrageous that it does not lead to good faith negotiations because the offer is unreasonable and outside the margin of error. The margin of error is a good place where a judge would likely end up if the case went to trial.

What Is An Offer of Judgment?

An offer of judgment is a seldom-used tool that a lawyer might recommend in rare care. The rules on offers of judgment can vary by state and locality. But an offer of judgment is a formal offer to settle the case that is usually filed with the court.

The other side then has a certain number of days to respond to the offer of judgment. After that, the party receiving the offer of judgment could accept it and end the offer. In other cases, they might reject the offer of judgment outright or submit their own offer of judgment.

Truthfully, offers of judgment can be complicated to draft in a divorce or family law matter because of the many issues that can be at stake, including property and debt division, child custody, child support, maintenance and attorney’s fees.

How Can An Offer of Judgment Help?

However, an offer of judgment might help because it allows the judge to visibly see that one party is making meaningful attempts to settle the case. If the other side is non-responsive or unreasonable, it can set up a scenario where the judge is aggravated with the party not attempting to settle.

The other aspect of an offer of judgment is attorneys’ fees. Usually, if the rejecting party cannot beat the offer at trial on any of the issues at stake, they are prohibited from getting attorney’s fees and court costs from the other party at trial. Thus, a party who is originally unreasonable might have an incentive to change course.