Compromise in Divorce – How Much is Too Much?

By: | June 14, 2022

How much compromise in divorce is necessary to be “cooperative”?

This is a question that anyone going through a divorce might have when deciding whether to try cooperative law.  Why would your divorced friends be telling you that you need a bulldog attorney if the cooperative approach is better?  How much are you going to have to “give away” to settle your case?

The Charleston Cooperative Family Law Association (CCFLA) is a group of lawyers who believe that a cooperative approach is better for families and individuals going through divorce.  This does not mean that attorneys stop being zealous advocates on behalf of their clients who are separating or divorcing.  Advocacy is at the very heart of what it means to be an attorney. But advocacy does not need to be blind to reality.  And the reality is that many people cannot afford the investment of time, money and emotion that divorce litigation requires.  For them, it is clear that compromise is required to resolve their case.  The question then becomes, if compromise is a given, how much is too much?

Of course, every party to a divorce has the option of simply giving the other side everything they want.  That will likely settle the case very quickly with little litigation or attorney costs.  The downsides of this approach are pretty plain.  One party could be left with very little in the way of property division, support, or custody.  Because many aspects of marital settlements in the Family Court cannot be modified in the future unless both parties’ consent, or can only be modified with difficulty and great expense, these agreements are hard to change. Further, agreeing to an unfair settlement demand is not guaranteed to lead to peace.   An unreasonable spouse may continue to be unreasonable, regardless of the terms of the divorce.

On the other hand, refusing settlement offers that fall within a range of reasonableness is counterproductive as well.  If your attorney recommends a settlement offer, it is likely because he or she believes it is within a range of what you can expect to receive in family court, given the known, provable facts and South Carolina family law as it currently exists.  If a settlement offer falls within these parameters, it is a “fair” offer regardless of whether it feels fair to you given what took place during the marriage.  For example, it is legally “fair” for a spouse who wasted money throughout the marriage to receive one-half of the savings the other spouse responsibly squirreled away for the future.  It is legally “fair” for a parent who has never spent the evening alone with a child to have regular scheduled overnight visitation.  It is legally “fair” to have to alternate Christmas Day from year-to-year with an ex who has never really cared about celebrating Christmas.  So, depending on the precise facts, it is very possible that refusing to settle these issues is not in your best interest in the long run. 

Where is the dividing line?   When is compromise in divorce negotiations reasonable?  When have you compromised too much?  It should come as no surprise that there is no clear answer to these questions.  Many family court cases have been litigated over one overnight visit per month.  This does not seem to make sense from an objective standpoint.  Why spend thousands of dollars to litigate the issue of one overnight?  Of course, by the time the parties have gotten to that point, they probably both have “given up” a lot when it comes to visitation, inching toward a middle ground.  To be asked to compromise even a little bit more can seem like absolute surrender. These are tough choices, but with a clear-eyed view of the facts of each case and the state of South Carolina Family Law that governs these decisions, along with a healthy dose of appreciation for the costs (emotional and financial) of litigation, fair compromise is not just possible, it is probable.

The Charleston Cooperative Family Law Association exists to help people going through separation or divorce in South Carolina Family Court to achieve Marital Settlement Agreements (or Modification Agreements) that work for them, now and into the future.