Settling Before Filing | Divorce in Washington State

by Samuel K. Darling, Divorce Lawyer in Bellevue, WA

This article explains how to settle before filing for divorce in Washington State. Pre-petition settlement can be hugely advantageous. It can save time, money, and especially turmoil. In fact many divorcees describe divorce litigation as being the most traumatic event in their lives. Avoid it if you can.

Parties rarely agree on all the necessary terms at the outset. But they usually reach agreement on all the issues eventually. Upwards of 90% of divorce and family law cases end in settlement, usually shortly before trial. Consider informing your spouse of this and of the average divorce cost in Washington. It might encourage him or her to try harder to settle without going to court.

Table of Contents:
1) Communicating with the Opposing Party: The 5 Rules of Negotiation
2) Formal Negotiations
3) Putting Your Agreement in Writing

I. Communicating with the Opposing Party: The 5 Rules of Negotiation.

Perhaps the best means of reaching a favorable agreement is to learn to communicate effectively with the opposing party. You do not need an attorney for this, though attorneys can help. Keep the five rules of negotiation in mind:

1. Never Negotiate Against Yourself. Often negotiators make this the number one rule. It means, “never make another offer until the other party has countered.” The parties should go back and forth with offers, like ping pong. If the other side has not given any sort of offer after yours, get one. It needs to be an improvement upon his or her previous offer. Prompt the other side if necessary. Ask what he or she wants. You can even outright say “I’m not going to make another offer until you offer a meaningful compromise.”

Your chances of getting a fair deal decrease if you compromise without receiving a compromise from the other side in return. You lose the opportunity to solicit movement from the opposing party. It can also signal your desperation.

You might be thinking “I’m going to just make a take-it-or-leave-if offer that is fair and get this over with.” You can try this, but it rarely works well. Expect the traditional back-and-forth. Almost all meaningful negotiations involve incremental back-and-forth offers. That may strike you as a waste of time and energy, but this characteristic of negotiations pervades most cultures. Humans seem to have a psychological need to see compromise before we reciprocate with meaningful compromise of our own.

2. Make a Reasonable Opening Offer. Your offer does not need to be one you expect the other side to accept, but it should be straight-faced. Do not waste time and jeopardize your credibility and rapport by making an opening offer that is objectively unfair to the opposing party. Your offer should be justifiable.

Make sure your opening offer is fair to you as well. That means leaving room to give more to the opposing party as the bargaining process moves forward.

3. Avoid Going Backwards. When negotiations become emotionally charged, it can be tempting to make your next offer worse than the one you made previously. Be wary of this. Making your offer worse will often infuriate the opposing party and end the negotiations permanently.

If you want to go backwards without ending the negotiations, make sure to provide the other side with a good explanation of how relevant circumstances changed. For example, you might go backward in your financial negotiations if you lost your job due to no fault of your own.

4. Negotiate from a Position of Strength. This makes intuitive sense, but most untrained negotiators are unsure how to do it. One way is timing. Ask for a divorce when the timing is right for you, not when you are angriest.

That relates to this next point. Perhaps the best means of strengthening your position is to gain knowledge about the topics at hand. You should know when the timing is right, what your rights are, and whether the opposing party’s positions are unreasonable. Read about the following topics to the extent you care about them: a) property division, b) custody considerations, c) types of parenting plans, d) child support basics, e) calculating maintenance, and f) divorce attorney fee awards.

Further strengthen your bargaining position by gathering proof. Show the other side you can win if you go to court. Notably, you might elect to withhold some proof for strategic reasons. An example is when you have proof of the other side lying about a small issue. Revealing your evidence would help you very little in negotiations. But tipping off the other side might make it easier for the opposing party to explain away the lie when you try to impeach his or her credibility if/when the case eventually goes to court. Better to keep that arrow in your quiver, perhaps until a deposition.

5. Do Not Compromise Too Quickly. As mentioned, important negotiations almost always involve incremental back-and-forth compromises. Avoid moving towards your expected settlement position too quickly. Compromising too much too quickly presents the same dangers as in the first rule, the one about negotiating against yourself.

II. Formal Negotiations.

Sometimes parties engage in collaborate divorce or early mediation before filing for divorce. Both are structured efforts to mediate and reach an early agreement. These options were popular 10 years ago but have fallen out of favor. They are expensive and arguably waste most parties’ best chance at settlement by engaging in mediation too early.

You might describe mediation as a silver bullet, your best defense against going to trial. Often you can only convince your spouse to mediate once, meaning you probably have one shot. It makes sense to use that single silver bullet when your target is close and chances are good. Most counties require parties to mediate anytime prior to trial, and informal statistics from an especially busy divorce mediator show settlement rates almost double when mediation occurs shortly before trial as opposed to early in the divorce process. The highest settlement rates – nearly 95% – occur during a window six to eight weeks prior to trial.

This does not mean collaborative divorce and early mediation are bad. They still have their place. They are an especially good idea for high-worth parties who can afford the expense and want to keep their financial information and accusations out of the public record.

As a practice tip, do not engage in collaborative law or early mediation unless you have a signed agreement to mediate again six to eight weeks prior to trial, just in case.

III. Putting Your Agreement in Writing.

If you reach terms, our firm has an example divorce settlement agreement you might benefit from using. We also have an article on entering agreed orders.

That’s it! We hope this was helpful. Our firm believes in making quality legal information available for free on the internet. For more, visit our website and click the resources tab in the upper right corner. From all of us at Genesis, we wish you the best with your family law matter!

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