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Divorce & Family Law This forum is for discussing any of the legal issues involved in your divorce.

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Old 01-27-2013, 10:01 PM
firhill firhill is offline
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Default Another Offer to Settle question....

When proposing an Offer to Settle on a final basis can I state that the other party can accept the Offer to Settle in it's entirety as well as the option of accepting any of the issues addressed individually.

If so, is this common practice?
It seems that it would lend itself to both parties agreeing to/taking care of some issues that they are close to agreeing on.

Is the following acceptable?....


The Applicant offers to settle the following issues of these proceedings, on a final basis.
The Respondent may accept the Offer in its entirety or any part individually.

Offer to settle on **Costs** may only be accepted if the entire Offer is accepted.


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Old 01-28-2013, 12:28 AM
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Quote:
Originally Posted by firhill View Post
When proposing an Offer to Settle on a final basis can I state that the other party can accept the Offer to Settle in it's entirety as well as the option of accepting any of the issues addressed individually.

If so, is this common practice?
It seems that it would lend itself to both parties agreeing to/taking care of some issues that they are close to agreeing on.
First of all, Microsoft word leaves some weird tags in posts

Anyhow, have you compromised at all on the offer to settle? Imagine that there are issues A through F. If you relented on issues A through D in return for getting stuff E and F, then can't your ex just accept A through D, and then still fight E and F?
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Old 01-28-2013, 04:04 AM
firhill firhill is offline
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Quote:
Originally Posted by Janus View Post
First of all, Microsoft word leaves some weird tags in posts
00ps!!!!! Sorry 'bout that.


Quote:
Originally Posted by Janus View Post
Anyhow, have you compromised at all on the offer to settle? Imagine that there are issues A through F. If you relented on issues A through D in return for getting stuff E and F, then can't your ex just accept A through D, and then still fight E and F?

In nine months the only item resolved was that I be provided with a photocopy of health card, so I'm not holding my breath that any offer/issue will be accepted.
TBH I would be thrilled if one or more parts of the offer was/were accepted as each one is satisfactory to me and I'd be willing to take my chances on any of the outstanding issues at a later date.
There are some issues (Travel, Documentation) I will "budge" on and some I won't (custody) but I'm pretty sure as long as the Respondent is repped by her IMO negative advocate lawyer, nothing will be resolved by way of Offer to Settle.
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Old 01-28-2013, 08:00 AM
Gilligan Gilligan is offline
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My honest opinion is that you make a full off to settle, rather than giving into anything and then having little else to negotiate with.

If EX wants custody and will go to trail, then your offer can be used to award costs.

Hope t hat helps.
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Old 01-28-2013, 10:17 AM
mom2three mom2three is offline
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An offer is a tentative promise. If a party wants to "accept" parts of the promise and not others then what you have is a counteroffer which you would have to accept to make the agreement a binding contract. Therefore, if a party agrees to various clauses in the agreement those will remain the same, with the other unagreeable clauses changed to reflect the counteroffer.
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Old 01-28-2013, 10:47 AM
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Quote:
Originally Posted by Gilligan View Post
My honest opinion is that you make a full off to settle, rather than giving into anything and then having little else to negotiate with.

If EX wants custody and will go to trail, then your offer can be used to award costs.

Hope t hat helps.
This may very well be good advice, but really it is a sad state that people hold back agreeing to reasonable things as a negotiation tactic.

Ideally, people should quickly and formally agree to the things that are easy and obvious to agree to and then narrow down the list, dealing with individual issues separately and fairly, until a final agreement is made. In my view this should work because each and every aspect of a SA should stand on its own as reasonable.

That being said, there should be a lot less struggle in separation - the basic ideas are there (divided marital assets evenly, raise the kids together and in their best interests, and pay support according to actual income, adults are responsible for their own well being). To implement these ideas should not involve litigation, or conflict.

Unfortunately, unreasonable people and greedy lawyers, get in the way of this, and one of the ways they do this is by having an all or nothing attitude - the system should be there to control these people, not to burden the reasonable ones. But I digress.
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Old 01-28-2013, 10:54 AM
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I honestly could not agree more. It really is a sad state, but from my experience, when you are dealing with somebody who is un-reasonable and a lawyer who promotes this kind of behaviour, it generally just get unfair and promotes an unhealthy environment where the child ultimatly must live in.

Personally, my offer would be something that is reasonable (i.e. something that the judge would be expected to make a decision on). If your EX wants to continue to litigate, then there is little else you can do.

But my feeling is that the offer should be accepted as a whole since there is little else to negotiate if you make a "Resonable Offer", which should be the basis of your offer to begin with...

I am not a lawyer and don't pretend to be one.

Good luck!
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Old 01-28-2013, 10:57 AM
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Quote:
Originally Posted by billm View Post
This may very well be good advice, but really it is a sad state that people hold back agreeing to reasonable things as a negotiation tactic.

Ideally, people should quickly and formally agree to the things that are easy and obvious to agree to and then narrow down the list, dealing with individual issues separately and fairly, until a final agreement is made. In my view this should work because each and every aspect of a SA should stand on its own as reasonable.

That being said, there should be a lot less struggle in separation - the basic ideas are there (divided marital assets evenly, raise the kids together and in their best interests, and pay support according to actual income, adults are responsible for their own well being). To implement these ideas should not involve litigation, or conflict.

Unfortunately, unreasonable people and greedy lawyers, get in the way of this, and one of the ways they do this is by having an all or nothing attitude - the system should be there to control these people, not to burden the reasonable ones. But I digress.
Well Put my friend, if everyone thought like that there would be no family court.
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Old 01-28-2013, 01:44 PM
firhill firhill is offline
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Thanks to all for the feedback.

Quote:
Originally Posted by billm View Post

Ideally, people should quickly and formally agree to the things that are easy and obvious to agree to and then narrow down the list, dealing with individual issues separately and fairly, until a final agreement is made. In my view this should work because each and every aspect of a SA should stand on its own as reasonable.
That is my thought process exactly. I just couldn't put it down in such a short, concise paragraph.

Quote:
Originally Posted by Gilligan View Post

Personally, my offer would be something that is reasonable (i.e. something that the judge would be expected to make a decision on). If your EX wants to continue to litigate, then there is little else you can do.
Exactly. There is nothing in my offer that I would refuse accept if the shoe was on the other foot. I use that as a bench mark as to what I believe is reasonable.

Now, whether a judge (post order) views the parent who originally asked for 50/50 access (84hrs/wk), and dropped their offer to 40/60 (70hrs/wk) as more reasonable as one who originally asked for 86/14 access (25hrs/wk) and now offers 28hrs/wk, remains to be seen.

I appreciate everyone reminding me that if I do settle some parts, then I'll have nothing left to negotiate with. I get that but I guess I still hold out hope that "fairness" will prevail in the end.

Intro on my Offer to settle goes like this:

The Applicant offers to settle any or all of the following issues of these proceedings, on a final basis, in accordance with the following terms.

This offer may be accepted in its entirety or the Respondent may choose to accept parts A, D, E, F or G on an individual basis.
Parts B and C may be accepted as a whole but not individually.
Part H is open for acceptance only if the entire offer is accepted


Parts B & C deal with access and holiday access. Part H deals with costs.
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Old 01-28-2013, 02:09 PM
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In my agreement, there were certainly points that I conceded in return for movement on other issues. Financial issues can stand on their own, but custody and parenting arrangement issues often come in small parts that make up the greater fabric.

For example, I may like the current babysitter, whereas the ex does not. I may agree to change babysitters in return for getting to decide where/if the kids go to summer camp. If I offered that as clauses A and B, ex would have accepted A (leave babysitter) but not clause B. There is no reason to expect that A and B would acceptable to each party in and of themselves.

Quote:
Originally Posted by firhill View Post
I appreciate everyone reminding me that if I do settle some parts, then I'll have nothing left to negotiate with. I get that but I guess I still hold out hope that "fairness" will prevail in the end.
Don't count on it. Assume that your ex will be ridiculously unfair, and then be pleasantly surprised. That said, you know your ex better than we do. If I had offered my ex such a piecemeal agreement, my generosity would have been exploited ruthlessly (and, for that matter, often was... I was given a crash course in the dark side of human nature during those negotiations). Looking back, every time I was nice, it was taken advantage of, severely. The only gains I ever made were when I aggressively held the line and threatened to go nuclear. But that was my ex, not yours.

If you are going to court anyway, then make the ex take it or leave it, it will help you with being awarded costs at the end. Any clauses she accepts before trial won't be used for costs determinations. Of course, if you still think that you might avoid court, then your plan is good... agreement begets more agreement in my experience.
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