In almost every case there are efforts to resolve property, child support, child custody and other related issues before a case is filed with the court. Settlement is less expensive financially and emotionally than litigation. Furthermore, settlement affords the parties the chance to make their own decision rather than have a third party impose a decision on them.
However, what happens when a spouse refuses to settle? When a spouse refuses to discuss or engage in settlement, that leaves the other spouse with a limited set of options to move things forward towards a resolution:
- Start Litigation
- Propose other dispute resolution processes
I will explain each of these options in more detail below.
Litigation: Unless a court case is filed, there is generally nothing that can be done to force a resolution of the case. The reason for this is that negotiations and settlement discussions are completely voluntary and in some situations, one spouse may choose not to engage in negotiations. Filing a case with the court and starting the litigation process triggers court procedures and deadlines that must be met and hearings can be scheduled for the court to address the disputes. It is not unusual for a case to be filed with the courts and the parties are still able to work through their lawyers to settle.
Propose Other Means of Dispute Resolution: if your spouse is refusing to negotiate with you, there are options short of litigation that you might want to suggest.
- Mediation: Mediation is a dispute resolution process that involves a third-party neutral person to help you and your spouse settle your case. Mediation can occur with or without lawyers involved.
- Arbitration: Arbitration is a process whereby the parties hire a private person, usually a lawyer, to decide issues in their case. Essentially, think of this process of hiring a private judge where your business will be private and not in the court system.
- Collaborative Process: This si a relatively new approach to settlement. In this process, you, your spouse and the lawyers meet several times in a friendly setting to share paperwork, talk about differences, and try to work to a final settlement. In this process, the attorneys you and your spouse hire are prohibited from later representing either of you in court if the collaborative process is not successful.
Wait: Rather than trying to settle in some way or litigate, you could always chose to wait until your spouse is ready to settle and try again later. The problem is that there are no guarantees your spouse will change his or her position and you will lose lots of time and sleep waiting for an eventual conclusion.
Scott Allen is a divorce attorney in Raleigh, NC with over nineteen years of experience in all areas of family law litigation, settlement, mediation, and collaborative law process. He can be reached at 919.863.4183.