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After divorce papers, there’s nothing more important during divorce settlement negotiations than to remove yourself from positional bargaining. This is the time to allow yourself to focus on the main interest that you’re trying to satisfy.
Focusing on positions is the equivalent of drawing a line in the sand when it comes to negotiations. Unfortunately, this is rarely helpful especially at the beginning of the negotiation. It is much better to focus on the interest that you’re trying to satisfy, as well as the interests that your spouse is trying to satisfy.
A position might be that you will not pay your spouse a penny more than $1,500 a month in alimony. Your spouse may take a position that she will not settle the case for anything less than $2,500 a month in alimony. Dispositional targeting can quickly create a stalemate, and no resolution will take place for you guys on your alimony or spousal maintenance issue; it could also possibly blow your entire divorce case into a drawn-out conflict.
The basis of your position might be your interest that you want to make sure that you don’t blow your budget and are reasonably managing the situation. Your spouse’s true interests might be to make sure that she can continue to pay the rent and the utilities while she’s finishing up her degree. Both of these interests can be aligned. Analyzing the problem from the perspective of interests will allow thoughts and feelings to flow better, allow for more creative solutions in the negotiation process.
Along the same lines, be wary of taking a hard bargaining approach during your divorce proceedings. This is the approach that it’s quote, “My way or the highway.” While this can sometimes be effective in cases where the other party is more passive and may be willing to bend, in the majority of cases the hard bargaining approach can lead to a breakdown of settlement negotiations.
The idea of hard bargaining sounds sexy, and if the personality situation is right then it is an effective route. But a situation where two parties hard bargain will quickly lead to a stalemate — and no negotiated divorce settlement.
In most divorce settlement negotiations, preserving a strong relationship with the other side is a beneficial result. Do you have children? Then your soon-to-be ex-spouse is going to always be the parent to your child, and you’re going to need to develop a parenting plan and co-parent with them in the future. Will there be a spousal support or a child support claim? How about legal custody? If so, you will need to communicate and work up spousal support or child support with the other party in the future.
Yes, a marriage is ending. However, in most cases, a relationship still exists after the termination of the marriage, especially if it was a long-term marriage. Destroying that relationship, whatever it might be, during settlement negotiations almost never ends positively for either party.
Seek first to understand, and then to be understood. If you can’t understand the other party’s perceptions, you’re not going to be able to negotiate properly in your case. Notice by saying perceptions we’re not talking about reality. More often than not it is perceptions and emotions that lead to a party agreeing or not agreeing to a settlement. Understanding the emotional triggers and the perceptions of the other party can help you think creatively, better respond to the perceived reality, and resolve the emotional part of your settlement.
Parties are often willing to sacrifice financial gain to have one of their emotional needs satisfied. That means that recognizing the other side’s perceptions and emotions can often lead to a premium deal for you.
On the flipside, it’s imperative that you control your own emotions throughout the divorce process. Consider it putting on your “poker face.” You don’t often want the other party to see your emotional side because then they’ll learn what the trigger is for you. Not to mention, sometimes losing control of your emotions can lead to a breakdown in settlement negotiations that can lead to an increase in costs and time.
If one thing stands out about divorce mediation and negotiations more than anything else, it’s that it is possible to negotiate a fair divorce settlement agreement without knowing all the facts. Sure, you can “get lucky” if neither party knows the score. But much more often, one party has a strong comprehension of the facts as applied to the law, and the other party doesn’t.
The end result is often not pretty: we often see a party getting an unfair divorce agreement, as a result, the lack of the information. Ironically, the other side may come out of the divorce agreement feeling really good — when in reality their deal is something that is a lot less than what a judge would give them in court.
The take away is that in every divorce case it is vital that you prepare for divorce mediation by making sure that financial disclosure is complete, and that your divorce attorney has done a good job of analyzing the facts of your case and applying them to the law. This will help ensure that you don’t end up in a situation with a poor deal. Conversely, understanding all the facts in your situation will help you keep an eye out for a spouse that is uninformed or under-informed. If that’s the case, you may have an opportunity to resolve your case to your benefit.
With that said, often a party’s lack of information or understanding of how the facts apply to the law can lead them to overestimate what their results will be in court. A common scenario is a needy spouse who, for whatever reason, has been led to believe that the amount of alimony that he or she would receive is significantly higher than what a family court would potentially allow.
In these cases, often the best maneuver is to educate the misinformed spouse. This can be done through the use of financial and marital asset disclosures. It can also be done through the use of motion practice, letters from your attorney to the other attorney, or even at mediation through the mediator.
We often find relatively good deals that are being inhibited because one of the parties has not developed substantial trust with the other party. For example, consider the attorney who represents a spouse who traditionally didn’t have access to all the financial paperwork during the marriage. Even if the negotiations being made are genuine, without the financial documentation backing up the “numbers,” the other spouse and attorney may not have the trust necessary to go further in the financial settlement and property division.
We can solve this trust discrepancy by being transparent. So for example, if the other side has requested financial discovery, it is often best to gather all discovery as quickly as possible and to organize it as neatly as possible before turning it over to the side. Sometimes it can be as simple as reaching out to the other spouse and asking him or her, “is there anything else such as bank documents that I can get you that will help you in preparation for our settlement negotiations?” Making such an offer and then fulfilling it can show the other side that you intend to operate in good faith. This can build trust, and lead to fair divorce settlement.
Never forget that negotiations by their very nature require substantial communications between both parties and their attorneys. Communication can help solve problems and help parties get to the crux of the matter.
In many cases, this requires communication between you and your spouse. Being transparent, communicating, and trying to work out terms of a settlement can be helpful and lead to an amicable resolution. Sometimes, however, you and your spouse may have mistrust for each other or emotional problems that make negotiations impossible or impractical. In that case, it’s wise to let the attorney speak for you in advance of mediation to find common interests upon which to build a settlement resolution.
Remember that focusing on the problem at hand is always more valuable than focusing on the person. It is common during a divorce that there are emotional issues tied into your relationship with the other person. Try to separate the problem from the actual person, and allow yourself to objectively focus on what needs to be done and how.
Remember the proverbial children who quarreled over an orange. After they finally decided to cut the orange in half, the first child took one half, ate the orange, and threw away the peel. The second child threw away the fruit, and used the orange peel to bake a cake.
Don’t assume your divorce is a zero-sum game whereby a dollar to your spouse is one less dollar to you. Look for the win-win.
Consider the alimony case where at first glance the 53-year-old husband’s goal seems to be to pay the least amount of alimony possible, and the 43-year-old wife’s goal seems to be to receive the most amount of alimony possible for as long as possible.
But let’s look a little deeper and flesh this out.
Perhaps the husband’s real goal is to reduce his workload and travel before he’s too old to enjoy it.
Thus, perhaps the wife recognizes that the husband is flaky about work. She is worried that he might quit his job, or otherwise end up unemployed. Thus her real goal might be to increase her chances of collecting the alimony money so she is not worried about living paycheck to paycheck.
Knowing these goals, it seems that there is a win-win resolution that might help both parties. For example, the parties could make a property settlement that agrees to an unequal distribution of other marital property in favor of the wife. This would mean that the husband wouldn’t have that monthly annuity he’d have to pay to the wife and his expenses on a monthly basis would be smaller. He would be free to travel.
The wife would see a benefit in knowing that the money would come to her upfront, instead of waiting to see what happens with the husband. In this scenario, the wife may be happy to take a discount on the dollar amount because cash in hand is more valuable to her. Or perhaps the parties agree to a shorter term of alimony, but the husband stipulates and agrees that it will be non-modifiable — he will be on the hook to pay the alimony even if he loses his job or later becomes underemployed.
In either case, there can be a win-win solution that effectuates the interests of both parties, whether there’s an equitable distribution or not.