When to file and when to continue negotiating without filing

I had a recent consult with a woman who was gung ho to file for divorce. In discussing her situation, I could not understand her urgency to file before giving negotiations a chance. Like many spouses who come to my office seeking a divorce, she didn’t realize that she would need to resolve issues of custody, support and property division–whether by agreement or from a trial–before the court would grant her a divorce. Like many folks who seek family law services, she also didn’t understand that one can continue to negotiate even after one has filed a contested case, and that delaying filing doesn’t foreclose filing if negotiations aren’t initially successful.

A decision on when to file a contested case is always the client’s ultimate decision but an attorney can provide guidance on the best choice. The factors I consider when advising folks on whether it is time to file are as follows:

It’s time to file if….

• The status quo is unstable or untenable

Often folks first contact attorneys when a stable situation involving their marriage or child(ren) has become unstable or untenable. Perhaps there are concerns that the other side may do or is doing things that endanger the children or undermine that person’s relationship with the children. In a marriage, the other side may be threatening to hide or dispose of assets or cut that person off financially. In these situations a motion for temporary relief will be required to obtain the protections that a court order on financial or custody issues can provide. As such motions require an ongoing action, filing is necessary.

• The other side isn’t cooperating

Negotiations require cooperating from both parties. Without a filed action one cannot compel the other side to provide a financial declaration or attend mediation (unless a prior order compels mediation). Without a filed action one cannot appoint a guardian to begin investigating custody and visitation issues. Without a filed action and an order of discovery, one cannot compel the other side to produce information that might be necessary to negotiate a fair settlement.

Effective negotiations without an ongoing action necessitate cooperation from both parties. When one isn’t receiving it, it’s time to file.

• One wants to establish the marital estate

Under South Carolina law, the marital assets and debts that the court divides as part of equitable distribution are those that exist on the date of filing. Further, absent passive appreciation or depreciation, these assets are valued as on the date of filing. For folks who accumulate defined benefit pensions through ongoing employment, filing before negotiating stops the other spouse from accumulating an increasing interest in that pension. Where there are concerns that the other side may be accumulating debt or dispersing assets, filing a marital dissolution case offers protection from this behavior.

• One wants to start the clock on a fault divorce

Pursuant to S.C. Code § 20-3-80, the family court cannot hear an action for a fault divorce until two months after the complain has been filed and cannot grant the divorce until three months after the complaint was filed. When a client is seeking a fault divorce and wants it as quick as possible, one may need to file to get this clock started.

Continue negotiating without filing if….

• One won’t necessarily want court involvement if one cannot settle the matter

There are times folks want to see if they can reach a separation agreement before actually separating. Other times folks might want to see if they can reach an agreement on modifying custody, visitation or support but may not want to commit to a contested action if they cannot. Sometimes unmarried parents may want to see if they can negotiate a formal agreement but may prefer to muddle along without an agreement than to have contested litigation if they cannot.

One can always dismiss an ongoing case by consent and there is little (often nothing) that can prevent one party from filing a contested case. However, the act of establishing a ongoing case can itself be a driver of the conflict. If one wishes to avoid this conflict, it can be better not to file.

• One wants to hold down initial costs

Any experienced attorney will charge a higher retainer to file than to negotiate. There are initial costs associated with filing any action and those costs need to be factored into the retainer. Further, by being counsel of record in an ongoing case, an attorney is responsible for handling work whether or not the client is paying the fees. When a client stops paying fees in the midst of negotiations an attorney can simply discharge the client and stop working. This is no longer an option once a case is filed and even a seemingly amicable case can get heated.

A greater retainer should be demanded when representation will include obligations in an ongoing case, especially a potentially contested case. For folks who want a lower retainer and control of the budget, avoiding a potentially contested case is advisable.

• One wants to encourage or keep a cooperative attitude from the other side

Filing and serving a lawsuit can be perceived by the defendant as an aggressive act. There are clearly times–described above–when one might file an action for reasons having nothing to do with an aggressive posture–and when this occurs the Plaintiff should explain to the Defendant why one is filing before one serves that Defendant. However one cannot control other’s perceptions and many negotiations become more heated, and parties less cooperative, after a contested case is filed. If the other side is cooperating in the negotiation process, whatever benefits might be had in filing may be outweighed by this risk

• One doesn’t want to start the 365-day clock running

South Carolina now gives parties 365 days from the date of filing to either reach a final resolution or set the matter for trial. During that 365 day period, the parties must engage in sufficient discovery that they can comfortably try the case, and must attend mediation. If custody or visitation are substantially disputed, a guardian may need to be appointed and the guardian will need time to conduct an investigation.

While the 365 day rule doesn’t compel aggressive litigation, it does require a more aggressive timetable than negotiations do. If a party isn’t committed to the greater work that formal discovery, mediation and a guardian require, and the greater budget of preparing for trial and potentially going to trial, this suggests holding off on filing anything contested.

Filing a contested action rarely ends (and should never end) negotiation. Negotiating doesn’t preclude filing if negotiations drag or break down. The timing of when to file a contested domestic case is an important decision. Analyzing the factors above can be useful to making that determination.

Put Mr. Forman’s experience, knowledge, and dedication to your service for any of your South Carolina family law needs.

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