To Negotiate or to Litigate?

The reality of divorce is either you come to terms with your spouse, or have a judge decide your future for you. You have more control over the process when you agree to work things out directly with your spouse, assisted by your lawyer.

Starting negotiations too early about long-term issues can doom your efforts to failure. Whether or not you initiated the divorce, you both need time to adjust to the reality of your relationship being over, and to begin the process of rebuilding your lives. Emotion clouds the detached frame of mind essential to good negotiation. The best initial strategy is working out a temporary arrangement that minimizes emotional and legal conflict.

Think carefully about the terms of any temporary agreement. Keep in mind that the Court will be reluctant to change any arrangement that appears to work. The deal you make now may be the one you have to live with. Be cautious about what you agree to.

A reasonable time frame for transition ranges from a few months to a year. Negotiating a separation agreement itself can take three or four months under the best of circumstances.

Going to trial is risky and expensive; trying to predict the outcome is dangerous. If you do go to trial, expect the unexpected. No one can predict the outcome of even the most carefully prepared trial strategy with 100% accuracy. There are too many variables involved in most divorces to do so. The bottom line is that when you go to Court, you are turning over control of your life to a third party. The judge may or may not see things your way.

Also, don't expect the Court to make right what you feel is wrong. The Courts are overburdened. The judge's agenda is to encourage you to deal with your spouse and reach a settlement as quickly as possible. Your idea of what is fair may be entirely different from the judge's conception of it, so do not expect fairness. If you don't see the judge's decision as favorable you can appeal, but it may cost you a lot extra in legal fees, which is money you could otherwise use to live on.

Do a cost/benefit analysis especially with regard to monetary issues. Sometimes fighting over money can cost you more than you can ever hope to gain. If you factor in your legal fees, Court costs, expert witness fees, missed days from work, plus the fact that in the end you may be ordered to pay your spouse's legal bill, you can see it may be a losing battle even if you win. Carefully review with your attorney what you can reasonably hope to gain concerning any specific financial issues, and project the anticipated costs in advance. You may save yourself a small fortune.

Good negotiators are sensitive to the other party's needs.

Divorce always provokes strong emotion, which tends to make people consider their own needs only. But nothing can be more detrimental to a successful negotiation. As difficult as it may be at times, you'll need to be as objective as you can and look at the situation from the perspective of your spouse. How is he or she likely to be feeling? If you were in the same position, facing similar demands, how might you react? What would you direct your attorney to do?

Clarity is essential to successful negotiation. Sometimes it's easier to be angry than it is to be depressed. However, anger and vindictiveness blocks your ability to clearly evaluate your options, and to plan effectively for the future. Let your actions be guided by your ultimate best interests, not emotions and feelings. In some ways, you're best off approaching your divorce as a business transaction. Making financial and other adjustments on both sides is part of the reality of divorce. Fighting leads to high legal fees and less money to live on.

Approaching interactions with your spouse this way gives you an edge. If you can successfully anticipate reactions, you can tailor a negotiating strategy that has the highest probability of success. It's not just a question of having your attorney do all your talking for you. Your attorney helps facilitate a successful resolution of the entire divorce process, but ultimately you must decide among the options and approaches your lawyer outlines for you.

When negotiating, focus on points of agreement first. You want to establish a common ground that serves as the foundation for productive discussion when it comes to the more difficult issues.

Thinking from this broader perspective always includes your children's reactions. How you act speaks volumes to them. Your choices and actions are eventually telegraphed back to them in some manner. Think about their response to everything you say and do concerning the divorce and your spouse. When they're older, they'll remember these things and it may affect your relationship with them in a major way.

Never use your kids as a bargaining chip. For example, after you've worked out custody and visitation, don't tell your spouse you'll give additional access to the children in exchange for some other benefit. There could be legal repercussions, and an adverse impact on your children. Have clear boundaries with your ex-spouse, especially when it comes to your kids.