NOT GOING TO WORK OUT

THIS IS NOT GOING TO WORK OUT

© 2012 Roland Brown

You are getting into your car outside the mediator’s office looking forward to an untroubled night’s sleep. The long-running bitter dispute with your former business partner is over (substitute contentious neighbor, former spouse or significant other, angry relative, etcetera for “business partner” to fit the facts). Your lawyer, on the other hand, is thinking “this won’t work out”. Why? Because unless your settlement is with an insurance company where an exchange of a release for a check is the norm, there may be future payments or other obligations involved. Your lawyer is now faced with the important task of trying to foresee every possible thing that can go wrong with the settlement, and to craft settlement documents accordingly.

If you are to receive future payments as part of the settlement, those payments need to be secured. If the settlement is reached after a lawsuit has been filed, you may simply leave the suit pending and agree that if the payments are not all made, you can resume the lawsuit. However, that is not the best of options since avoiding a trial was a big factor in your decision to settle. If you are giving up title to assets, particularly real property, or if your adversary has equity in non-exempt property, your lawyer may try to include a lien on the property to secure the future payments. Generally, the giving of a lien would have been discussed during the settlement negotiations as it can be difficult to agree on a lien after a settlement has been reached. Other issues that often must be addressed include when someone will vacate jointly owned property and what happens if they don’t, who will handle the sale of property, who will pay certain debts, etcetera. Your lawyer should anticipate these issues during the settlement negotiations, but you should also think ahead with the “this is not going to work out” mentality and feel free to ask your attorney how these potential future problems can be avoided.

Permission to publish in Wimberley News & Views and Dripping Springs Outlook granted by author.