The truth about this notion may be found in Rule 408 of the Rules of Evidence, which states, “Evidence of (1) furnishing, or offering, or promising to furnish or (2) accepting or offering or promising to accept, a valuable consideration [“you take this, I’ll take that”] in compromising or attempting to compromise a claim [divorce settlement] which was disputed as to either validity or amount is not admissible to prove liability before or invalidity of a claim or its amount. Evidence of conduct or statements made in compromise negotiations is likewise not admissible. This rule does not require the exclusion of any evidence otherwise discoverable [documents and things] merely because it is presented in the course of compromise negotiations. This rule also does not require an exclusion when the evidence is offered for another purpose, such as proving bias or prejudice or interest of a witness or party, negativing a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution.”
Plainly stated, positions taken in negotiations — “I’ll take this if you’ll take that”– are not discoverable, but the existence of or the value of “this and that” is discoverable and admissible in court. You can’t expect that the disclosure of “all of your sins” in a settlement conference will be protected just because it is a settlement conference. The law just doesn’t work that way.
John Nichols, Sr. practices family law in Houston. He has been listed as one of the best matrimonial lawyers in the U.S. in several journals and magazines including National Law Journal and Town & Country.