Negotiating in Divorce
The problem is that it doesn't work that way. You and your spouse are going to disagree; you're going to have conflict. And by now, you know how important it is to take control of your divorce. Even if you give up control and turn over everything to your lawyer in adversarial divorce, you'll just be forestalling the inevitable, because you'll still have to negotiate after divorce. You're going to have to learn to negotiate one way or another, so you might as well get started.
Let's stop here and acknowledge that there are some of you who should not try to negotiate directly with your spouse, because your spouse is violent or abusive with you. Above all, you need to stay safe. This page is for those who can talk with their spouse and stay safe.
Lee's top ten tips for negotiating in divorce, with a bonus to make it 11:
We often think of divorce as an event. If only it were. Divorce is really a process – and not just one process, but actually three separate processes. Think of it as the legal divorce, the social divorce, and the emotional divorce. All three divorces relate in different ways to the date on which you separate – the "S Date."
The concept of the three divorces is so important that there's a separate page devoted to it. If you haven't already checked it out, you may want to go there now. Once you understand where you are, and where your spouse is, in the three divorces, you'll be able to adapt your negotiating strategy more effectively.
If you’re like most people going through divorce, you feel cheated, deprived, and betrayed. You believe you must insist on a laundry list of concessions.
You’re probably right. You should insist on some things that you really need. To accomplish your key goals, though, you need to think through what you absolutely must have, and what you would be willing to give up to get it.
I recommend that you actually write out a list of your priorities. This is not to share with anyone, except maybe your lawyer or coach. It’s to help you devise a strategy – a way to focus on those goals that are key to you.
Put at the top of the list those concessions – money, time, property, whatever – that you absolutely cannot do without. Work gradually down the list to the items that you’d rather have but could easily give up if it would help you accomplish your more important goals.
There are three questions you need to ask yourself constantly as you negotiate and work through the issues of your divorce:
Any good financial advisor can coach you on the time value of money. It pays to understand time value of money in divorce, because so many issues you’ll face will force you to choose between dollars today and dollars later over time.
Either in negotiation, in mediation, or in litigation, is this an issue on which you’re likely to prevail, or are you tilting at windmills?
What’s this costing you in lawyer fees? In time lost (or energy lost) from work? In its effect on your relationship with your spouse, your children, or your family?
If you don’t know the answer to these three strategic questions, or if you’re not satisfied from the answers that it makes sense to keep fighting, it may be time to explore a graceful concession. Thinking strategically is another of those important issues that has its own page. You can go there now if you'd like.
Fortunately, people going through divorce have several resources for help. Many of them cost money, but some of them are available at reduced cost, or sometimes at no cost. Consider a "coach" – someone who’s skilled at the issues you’re facing and can act as a sounding board to help you think through your options.
You can often vent your harshest feelings with your coach. Once the venting is done, you and your coach can help you think strategically and plot your strategy for getting what you really need.
The most satisfactory solutions to the issues you and your spouse face may come from mediation. Mediation is the use of a trained professional who can help you and your spouse work through the issues you need to resolve.
The mediator doesn’t represent either of you; instead, the mediator acts as a neutral facilitator to articulate the issues you face, help you think through the possible solutions, and help you find a solution that makes sense to both of you.
This is all about building a climate that allows both of you to concentrate on the business issues you must resolve. This is tough, but crucial: look for good things you can say about your spouse. And you want them to revolve around your spouse’s new role as co-parent, not his or her role as your lover and spouse. That is, "You sure do smell good" doesn’t help. "The study schedule you set up with Laurie seems to be working really well" does. In public, stick to mother’s rule: "If you can’t say something nice, say nothing at all."
Avoid unnecessary "hot buttons," things that you know will anger your spouse and make it more difficult for negotiations to work. And watch the terms you use. The legal system has insisted that we use some terrible terminology for what happens in divorce. Words like "custody," "visitation," and "broken home" are powerful signals that polarize divorcing couples. Children don’t visit either parent. They live with one parent some of the time and with their other parent at other times. And marriages may end, but homes last. So do families, even if they get rearranged.
As you prepare to enter negotiations with your spouse, I think it helps to sit down and write out the first three moves. That is, plan what you will say or do, and anticipate the three or four most likely responses from your spouse. Then think through how you will deal with each response. Once you’ve done this, you can enter negotiations more confidently.
Here's how it works. You know what you're going to suggest. Write it down. If you have trouble expressing ideas when your spouse is around, you may want to write down the actual words you're going to use. If it helps, there's a worksheet here you can use to get ready. Just print one for each major issue and fill it out. There's even a section at the end to fill out after your negotiation. You can use it to think through what you did well and what you wish you had done differently.
If you’re like most divorcing couples, neither of you is in the habit of listening to the other very well. You probably have evolved a pattern of jumping in to defend yourself and your positions. This is understandable, but it inhibits good negotiating.
See if you can change your habit. Find someone to help you practice listening quietly and attentively. Don’t interrupt, and don’t plan your response. Concentrate instead on simply understanding the other person.
When your spouse is finished, summarize for them the key needs you heard. As you do, emphasize those you think you can do something to help fulfill. If it’s clear you’ve done something wrong, don’t be afraid to apologize.
I sometimes recommend that people devote an entire conversation to listening and restating their spouse's concerns, particularly if hostile feelings are running at a fever pitch. You know they won't hear your arguments anyway, so why dilute the power of simple listening?
There will always be plenty of opportunities later for you to state your needs, your perceptions, your position. I cannot overstate the sheer power of pure listening when your spouse is angry.
You and your spouse will have the greatest satisfaction with your resolution, and the greatest chance to abide by your agreement, if you negotiate directly with each other. This is your life. Why would you trust a lawyer or a judge to decide it for you? You need to take control.
The tendency is strong in divorce to use your children to help you communicate with your spouse. Don’t. Even if they’re adult children, they rarely want to be involved in the differences between their parents. And even if they do, it's unfair to them. They need to have as loving a relationship as possible with both parents.
Negotiating in divorce is all about trading one thing for another, what I call mooshing. Sometimes the items being traded look and act alike, such as when you take the J.C. Penney bill and your spouse takes the MasterCard bill. Sometimes, though, they can be quite different, such as when you give up the big-screen TV for a touch more alimony or even for a commitment that the kids will go to temple once a month. As long as you keep your attention on the time value of money and think strategically, there's no problem with mooshing. It's sort of what you do in divorce.
These are new habits. They’re going to feel awkward, and you should expect that. You also should expect your spouse to be suspicious of your new approach to negotiations. Your spouse will be particularly concerned if you tell him or her that "I’m trying out these ideas I got from that web site." Don’t talk about it; just do it.
And as you use these principles, do not expect your spouse to reciprocate. Just stick with the principles. In the long run, you’ll see results, and you’ll be glad you were faithful to them.
This is your new life. Don’t depend on the old rules. If you and your spouse agree for you to be responsible for the Visa card, make sure you know when your spouse will stop using it. If you’ve decided for the children to live with the other parent every other weekend, make sure you know when and where they’ll be picked up, and when and where they’ll be at the end of the weekend.
If you’re planning to take them camping, make sure the other parent knows it so they won’t have a suitcase full of dress-up clothes. Spell it out. You’ll be glad you did.
Divorces are all about broken promises. You’re moving into new roles now as co-parents, and this is an opportunity to rebuild your trust in each other in these new roles. Don’t waste it.
If you’re unsure whether you will be able to pay for something, say so. If you’re unsure whether you’ll have the children ready to go by 5:00, say so. And once you’ve made a promise, let your spouse know ASAP if your plans have to change.