There are times in every family law case when you may want to make a settlement offer to avoid the high cost of trial, but are reluctant to do so out of concern that it could be used against you later on in the case. This dilemma often happens during mediation. For example:
- Your spouse is asking for 80% of the marital assets; you have proposed a 50/50% split. To settle the case and avoid the expense of a trial, you might want to propose a 52/48% split.
- You want the parenting plan to give you 80% of the residential time, but to settle the case you would agree to 60%.
- Your spouse is totally opposed to your relocation with the children to another state, but you think they might agree if you propose that they get alternate Christmas vacation and four weeks in the summer.
If you make a settlement offer like one of those, can it be used against you at trial if the case is not settled?
The answer is no, it cannot be used against you. The court wants to encourage the settlement of family law cases. For that reason, Evidence Rule 408 protects you. It provides:
“In a civil case, evidence of (1) furnishing or offering or promising to furnish, or (2) accepting or offering or promising to accept a valuable consideration in compromising or attempting to compromise a claim which was disputed as to either validity or amount, is not admissible to prove liability for or invalidity of the claim or its amount. Evidence of conduct or statements made in compromise negotiations is likewise not admissible.”
There are a few rare exceptions to this rule, but normally you can make a settlement offer in mediation or negotiations without fear of it being used against you later in your family law case.