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Severable offer to settle vs non-severable

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  • Severable offer to settle vs non-severable

    My ex-wife Lawyer presented me with an offer to settle, in it, she excluded some of the clauses we had agreed on earlier in the day over the phone.

    I presented them with a counteroffer, 3 days later the lawyer asked me if my offer was severable or not? and I told her it was not severable, immediately she told me their offer is severable; when they gave me their offer they never mentioned that their offer was severable.

    I currently do not have a lawyer and I plan on getting one once my ex decides to go trial; I have been using unbundled services for the drafting of my counteroffer.

    Can you please advice on the difference between severable vs non-severable, and the best route to follow, can I also withdraw my offer to settle and present them with another offer; they have not accepted or rejected it?

  • #2
    Imagine a hypothetical offer to settle:

    a) Mom gets the kids 100% of the time
    b) House is sold, proceeds are split 50-50
    c) No spousal support


    If the offer is non-severable then you must accept all 3 clauses, or none of the clauses. You cannot "sever" one clause away from the others.

    If the offer is severable then you can accept or reject clauses independently. For example, you might agree to "b" and "c", but not agree to "a".

    Generally, severable offers are better to make, because non-severable offers usually have at least one objectionable clause that will scuttle the deal. However, severable offers are risky to make, because you might be compromising, but they will take the clauses that they like and fight over the rest.

    Remember, offers to settle are binding. I would definitely pay a lawyer to look over any severable offer you intend to send because those can backfire horribly.

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    • #3
      Thank you so much

      Comment


      • #4
        Severable offers are helpful in cost submissions. If you go to trial and match or 'beat' your offer to settle, then you are supposed to get full indemnity cost (it's rarely a true 100%). But it generally increases your costs award.

        However, if you make your offer non-severable, then it's harder to 'beat' the offer, as you might win on 3 issues but lose on 2. If that happens you will not have 'beaten' your offer and it may not be fully relied on in costs submissions. If the offer is severable, you can certainly ask for full costs on the issues you 'won'.

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        • #5
          Thank you so much, that was helpful, I will withdraw my offer, tweak it and make it severable, much appreciated

          Comment


          • #6
            Originally posted by Janus View Post
            Imagine a hypothetical offer to settle:



            a) Mom gets the kids 100% of the time

            b) House is sold, proceeds are split 50-50

            c) No spousal support





            If the offer is non-severable then you must accept all 3 clauses, or none of the clauses. You cannot "sever" one clause away from the others.



            If the offer is severable then you can accept or reject clauses independently. For example, you might agree to "b" and "c", but not agree to "a".



            Generally, severable offers are better to make, because non-severable offers usually have at least one objectionable clause that will scuttle the deal. However, severable offers are risky to make, because you might be compromising, but they will take the clauses that they like and fight over the rest.



            Remember, offers to settle are binding. I would definitely pay a lawyer to look over any severable offer you intend to send because those can backfire horribly.
            How do you state in an offer to settle that the offer is severable. Is it just a paragraph at the top/bottom e.g. " ...each of the four parts A, B C,D are severable from each other" . What is wording to use?

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            • #7
              ... terms in this offer are independent of one another (Severability Clause) so that they can be accepted separately by the opposing party.
              Last edited by mafia007; 12-15-2021, 12:55 PM.

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              • #8
                Originally posted by mafia007 View Post
                ... terms in this offer are independent of one another (Severability Clause) so that they can be accepted separately by the opposing party.
                Very well, thanks again 007

                Comment

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