settlement conference

Problem: The court has given you a date for a settlement conference, and you don't even know what one is.

Solution: Learn about settlement conference in this chapter and how to use it to resolve your case.

Settlement Conference- How the Court Will Help You Settle Your Divorce

Settlement conference is mandatory

All large counties in the state require parties to attend a settlement conference before a divorce case will proceed to trial. Thus, neither party has to request the conference, which could be taken as an indication of weakness. It is automatically set by the court.

Judges encourage settlement

The attitude of most judges towards trials is this: They don't want trials, and they do want parties to agree. This is not because the judges are lazy but because they realize that it is better for the parties, especially when they have children, to agree, and trials are very expensive and time-consuming. Nonetheless, it takes two to agree, and if your spouse is not cooperative, you may have no choice but to proceed to trial.

Settlement conference statement

Before your settlement conference, all large counties in the state require you to prepare a detailed Settlement Confer­ence Statement which must be served and filed a certain number of days before the conference. The purpose of the Settlement Conference Statement is to summarize your entire case in one document. This document is very important to you because it will be considered in detail by the judge at your settlement conference and will also be used at trial. You need to cover custody/visitation, child/spousal support, restraining orders, property, attorney’s fees and costs and any other issues on which you require a decision.

Include all claims

Include ALL claims that you may assert in this action, even the ones that you expect you will give up in the course of negotiations. The Settlement Conference Statement is not a settlement offer. It is a list of every single claim which you may assert at trial. If you leave out a claim, you lose it. You need to keep your options open in the Settlement Conference Statement by listing all claims.

Temporary orders are lost if not included in Judgment

If a stipulation (agreement made formally in court or in writing, signed by the judge) was made or you had a court hearing, the orders based on the stipulation or the hearing were temporary. Although the Order After Hearing is not labeled "temporary," it is only a temporary order. Once you have a Judgment in your case, your temporary orders cease being effective. If a party failed to make payments under a temporary order and accrued an arrearage, that arrearage would still be due, but in the future it will be the Judgment and not the stipulation or Order After Hearing that governs your case. It is best to specify in the Judgment any arrearages that you contend exist. If you still need a restraining order or an order that the other party keep children on health insurance or pay for your health insurance, you have to be sure that is included in your Settlement Conference Statement and Judgment. Otherwise you will find yourself without such an order.

Read local rules

Each county has very specific requirements as to what must go into a Settlement Conference Statement. You must read the local rule in your county to be sure your statement complies with those rules. These local rules are of extreme importance. You cannot do a Settlement Conference Statement without carefully reading the local rule for your county. If you have requested a trial date, and especially if you have received a trial date and are facing trial, you must read the part of your local family rules that applies to settlement conference and trial.

All property should be appraised or otherwise valued

All property of significant value should be appraised or otherwise valued, such as by obtaining the Blue Book value of a vehicle. This includes everything from furniture to businesses to residences. Most counties require that appraisals and reports such as those of vocational examiners be attached to the Settlement Conference Statement.

If you haven’t agreed on values in writing, get an appraisal or other valuation

Because of the cost of appraisals, it may be desirable to agree on the value of your property in writing rather than getting an appraisal, assuming that both of you are knowledgeable and informed about the value of your property. A verbal agreement is not enough. You two are getting a divorce, in part, because you are not communicating. Often, people think they have an agreement, but when it gets written down, it turns out there is no agreement. You need written agreements on values, signed by parties and counsel, or you need appraisals for larger assets.

Trial of issues regarding furniture may not be allowed

The court may not permit you to go to trial about the furniture. If furniture is not agreed on by the end of the settlement conference, the court may send those issues to arbitration. The arbitrator will charge more than $200 per hour, and this could buy a lot of furniture. It makes sense to agree on these issues. On the other hand, you should not give a houseful of furniture to your spouse just because your spouse will not agree to a fair division. It takes two to agree. You cannot do it alone.

File and serve the Settlement Conference Statement

You must serve the Settlement Conference Statement on your opponent or, on his/her attorney if there is one and file the original with the court. If you want to mail the statement rather than having it personally served on your spouse or spouse's attorney, you have to mail it five days earlier. You need to attach a proof of service by mail to your original which is filed with the court and any copy you serve by mail.

You must meet deadlines

You should be cautioned that it is very, very important to serve and file your Settlement Conference Statement on time (which is established by local rule in each county). If you do not do so and you do not reach an agreement with your spouse, the judge may penalize you such as by giving you a fine or may refuse to let you go to trial as scheduled or may find you have admitted matters that you do not want to admit. The importance of prompt service and filing of this statement cannot be overemphasized.

Exchange of witness information

Each large county has a deadline and a procedure which requires you to give information about any expert witnesses you have to your opponent. Some counties even require exchange of information for non-expert witnesses. Finally, most counties require exchange of documents that will be used at trial. These deadlines are absolutely crucial to your case. If you miss the deadline, you could find yourself at trial with the judge prohibiting you from using any witnesses and any documents, which, simply put, means you would lose.

What happens at Mandatory Settlement Conference

Be prepared to spend an entire half day, or even a day, at the settlement conference. The purpose of the conference is to help you settle your case during that time. At the settle­ment conference your case will be assigned to a judge or judge pro tempore for discussion. (Below the word "judge" is used, but this includes the judges pro tempore.)

Conference may occur in judge’s chambers

If the parties have lawyers, only the lawyers go talk to the judge. If the parties do not have lawyers, the parties go talk to the judge. This conference may occur "in chambers" (in the judge's personal office) rather than in the courtroom.

Judge gives parties guidance

The judge first reviews the written Settlement Conference Statements of both parties. Then the parties have the oppor­tunity to discuss major issues with the judge. Each party indicates that if the trial occurs, he/she will present certain evidence, and they argue how the law should be applied. The judge then lets the parties know: If your matter proceeds to trial, and each of you presents the evidence you say you will present, I will decide the case in the following manner. Thus, both parties are informed how the judge would decide the case. This means that there may not be much point in going to trial. There is no jury in a divorce trial in California. You get a "court trial" (trial by judge without a jury). Different judges tend to respond to cases in pretty much the same way, so even if you get a different judge, you may well get the same result.

Give serious consideration to what the judge says

The judge may write his/her recommendations on a paper which will be placed in a sealed envelope in your file. If the matter proceeds to trial, the envelope will be opened by the trial judge after he/she decides all of the issues in the case. If it appears from the results that one party was unreasonable in refusing to settle the case, the judge can award attorney fees or sanctions due to that party's unreasonableness. For example, at the settlement conference the judge might be presented with a case where the parties were married thirty years, had five children (all of whom are now adults), the wife never worked, has no education and is in poor health, and the husband who has a good income is refusing to pay any spousal support at all; the settlement conference judge will probably recommend that spousal support be paid, and will write the amount onto the paper which will be placed in the sealed envelope. Under these facts, virtually any judge is going to award spousal support, and the judge will make the husband pay the wife's attorney fees or part of them because of his unreasonable refusal to settle. Thus, you need to give very serious consid­eration to the recommendation of the judge at the mandatory settlement conference. If he/she tells you something you don't like, don't just dismiss it, but consider it seriously.

If you agree, go straight to court

If a settlement is reached that is agreeable to both parties, the court may hear testimony as to the "jurisdictional facts" and will later sign the Judgment after you indicate that both parties agree with the agreement. With the judge's approval in some California counties you can go to the courtroom at the end of the settlement conference, recite the agreement, and obtain the Judgment of Dissolution of your marriage. Some require you to write up the agreement instead of reciting orally. To be prepared for testimony, you can bring with you a list of the items you need to cover in court. At the hearing you use it so you will know what to say to the judge. You later present the Judgment and the Notice of Entry of Judgment and envelopes.

Judgment will not be changed later

Once you have gone to court and told the judge that you agree with the agreement, and the judge adopts it as an order of the court, you have to assume that, at least as to property orders, it is not going to be changed.

When a Judgment cannot be changed

"I changed my mind" is definitely not grounds for changing your Judgment. Nor is, "I was upset." If you said you agreed to the Judgment, it does not matter that you have changed your mind or that you were upset. This Judgment is for real, and if you don't agree to it, don't say you agree. You get only one chance. It does not matter that the agreement may have been stated verbally in court rather than written. The court reporter makes a record of it, and it will not be changed later as to property. As to support and custody/visitation, you must later show a significant change of circumstances to obtain a changed order.

When Judgment becomes final

The Judgment will specify the date on which it becomes final. Until that date, you are still married and cannot validly remarry.

What happens if you agree on some, but not all, issues

If at the settlement conference you reach an agreement on some issues but not on all issues, then you will recite the agreement reached at the settlement conference in open court, and you will proceed to trial later only on those issues that have not been resolved. Even if one party wants to insist on a "package deal" with all issues settling or none of them, the court usually does not want to proceed to trial on issues where there is no disagreement just because there is disagree­ment on other issues.

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