Know when to fight and when to settle

People experience separation come to Family Lawyers seeking legal assistance to do a variety of things. Some people want to settle a matter by agreement and don’t want to go to court. Other’s want to take a matter straight to court and have a Judge deal with the matter. So is it better to settle a matter without going to court? Not necessarily. Then is it better to go to Court and have a Judge decide your case? Not necessarily. The Answer is….”It depends”.

Many people come to a lawyer wanting to settle without court intervention and at any cost. If a person comes with this mind set then they should be very careful about signing any consent orders. This is not to say that a person should come to a lawyer wanting to fight come hell or high water.

1. Give yourself a Legal Financial Limit to Settle

A person needs to have in mind, an amount or limit that they want to apply to lawyers fees to try and resolve matters without court intervention. If a person starts to exceed this limit and the matter is not close to resolving then the fact is, that the matter is not likely to settle without court intervention. Any continuation of negotiations in these circumstances has a high risk of blowing out your legal costs and resulting in you receiving financially less than you originally considered in your Settlement Offers.

2. It is Never a Good Idea to Settle Just to Have it Over with

Sometimes people think it is better to just give the other party what he or she wants to “get it over with”. No-one disputes that separation is easy. In fact separation hits people where it hurts the most: at their family, and finances. Usually when a person wants to settle on any terms possible it means they are still going through the grief phase (‘its all too much’) or denial phase (‘It’s not over and they will come back to me’). The problem with this mindset is simply this: You will regret it down the track for the following reasons:

  • Grief doesn’t last forever but your agreement will;
  • The agreement does financially set you up into the future;
  • If the other party has sought legal assistance then chances are they are not coming back.

3. If your Lawyer advises an Offer from the Other party falls within range of what a court would order

Sometimes people have been focusing so long on the fight that when an Offer is made to settle it is dismissed on the basis that “the other party is hiding something”. While this might well be the case, it may also be possible that the other party has just come to a decision to resolve the matter and move on with their lives. If a reasonable offer is made then it is always best to settle the matter because if you don’t, the other party could potential seek costs against you. Costs can be awarded where an offer has been made and the Order of the Court is equal to or better than the offer made. In these circumstances the court can consider whether a person “wasted the public purse” by not accepting the offer.

4. When the amount of money you are fighting over is equal to or less than your lawyers fees

While family law matters are emotionally complex and people ‘s motivations are driven by many and varied factors, at the end of the day your money is always best in your own pocket. Don’t fight for the sake of punishing the other person as it will only backfire in the long run. If the difference between the parties offers is $40,000 and a lawyers fees are $50,000 than it will always be best to settle the matter on the basis of commercial sense. As a colleague once said “Principles are expensive”.


When to fight and when to settle
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When to fight and when to settle
When it comes to separation, we ask ourselves if it's better to settle a matter without going to court or have a Judge decide your case. It all depends. Separation isn't easy and while some matters can be resolved outside of court, you should know when to fight and when to settle.
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Queensland Law Practice
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