The best predictor of a good divorce outcome is the
degree of client control over the negotiation--everything
works much better if you have it. This doesn't mean you
should not get help and advice from an attorney if you
want it; it means you are better off if you plan to do
most or all of the negotiating yourself.
Studies indicate that clients feel their attorneys don't
actually give them much help or guidance anyway. In a
1976 Connecticut study, nearly half of those interviewed
reported no more than three contacts with their attorney,
including phone calls, while 60% said they had worked out
all issues without attorney help.
A New Jersey study in 1984 considered only cases with
children where both spouses had attorneys. Fewer than 20%
felt their lawyers had played a major role in settlement
So, you see, you are likely to end up dealing with the
negotiation anyway and there is strong evidence that you
are far better off if you do. You get a higher degree of
compliance with terms of agreement, a much lower chance
for future courtroom conflict, co-parenting is smoother,
support payments are more likely to be made in full and
on time, and you get on with your life more quickly.
Don't expect negotiating with a spouse to be easy. There
are lots of built-in difficulties--so many that you may
want professional help from a good mediator. But, okay,
so there are problems--that's nothing new in the world of
divorce. Let's look at exactly what you can do about it.
Here are ten steps you can take to make your negotiations
1. Be businesslike:
- Keep business and personal matters separate. You
can talk about personal matters any time, but
never discuss business without an appointment and
an agenda. This is so you can both be prepared
- Act businesslike: be on time and dress for
business. Don't socialize and don't drink; it
impairs your judgment.
- Be polite and insist on reasonable manners in
return. If things start to sneak into the
personal or become unbusinesslike, say you're
going to stop if the meeting doesn't get back on
track. Ask to set another date. If matters don't
improve, don't argue, don't get mad, just get up
2. Meet on neutral ground: Find a neutral place
to meet, not the home or office of either spouse where
there could be too many reminders, memories, personal
triggers. Or the visiting spouse could feel at some
disadvantage and the home spouse can't get up and go if
things get out of hand. Try a restaurant, the park,
borrow a meeting space or rent one if necessary.
3. Be prepared: Get control of the facts of your
own divorce; understand how the laws of your state apply
to the facts; find out the probable outcomes under the
law; clarify your goals. You can also prepare by trying
to understand your respective emotions and past patterns.
Just the fact that you are trying to do this will help
make things a little better.
4. Balance the negotiating power:
- If you feel insecure, become informed, be well
prepared, use an agenda, get expert advice and
guidance. There's never any need to respond on
the spot: state your ideas, listen to your
spouse, then think about it until the next
meeting. Don't meet if you are not calm; if the
meeting doesn't stay businesslike, don't
continue. If this happens often, consider using a
- If you are the stronger spouse, help build your
spouse's confidence so he or she can negotiate
competently and make sound decisions. And listen,
5. Build agreement:
- Start with the facts: You should by now have
gathered and exchanged all information. If not,
complete the information gathering (see Step 6 of
my article "Divorce--Overcoming Obstacles to
Agreement"), then try to agree on what the
facts are. Write down the facts you agree on and
list exactly what facts you do not agree on. Note
any competing versions then do research to
resolve the difference by research and exchanging
records. Compromise. If you can't prove some fact
to each other, you may have a hard time proving
it in court.
- Make a list of the issues and decisions you can
agree on. Write them down. This is how you build
a foundation for agreement and begin to clarify
the major issues between you.
Next, write down
the things you don't agree on. Always keep trying
to refine your differences--to make them more and
more clear and precise. Try to break differences
down into digestible, bite-sized pieces.
6. Consider the needs and interests of both
spouses: Avoid taking a position. Consider your
needs, interests and concerns alongside the facts of your
situation. Work together on brainstorming and
problem-solving; look for ways to satisfy needs and
interests of both spouses and try to balance the
7. State issues in a constructive way:
"Reframing" is when you restate things in a
more neutral way, to encourage communication and
For example: One spouse says, "I have to keep the
house." Reframe: "What I would like most is to
keep the house, that's my first priority, because . . .
What the house means to me is . . ."
8. Get legal advice: Typically, legal questions
come up as you negotiate. Get advice; find out if the
laws of your state provide a clear, predictable outcome
on your particular issue. Don't hesitate to get more than
9. Be patient and persistent: Don't rush, don't be
in a hurry. Divorces take time and negotiation takes
Whenever someone hears a new idea, it takes time to
percolate. It takes time for people to change their
minds. It may take time to shift your mutual orientation
from combative to competitive to cooperative. So don't
just do something; stand there! A slow, gradual approach
takes pressure off and allows emotions to cool.
10. Get help: Negotiating with your spouse may not
be easy; you're dealing with old habits, raw wounds,
entrenched personality patterns--all the obstacles to
agreement all at once. A third person can really help
keep things in focus.
Mediators are professionals who are specially trained to
help you negotiate; they are expert at helping couples
get unblocked and into an agreement. Mediation is very
effective and it usually goes quickly.
Before you begin to negotiate, get a copy of Divorce Solutions: How to Make Any
Divorce Better (the book from which this article
was excerpted) for you and your spouse. Then, if
possible, discuss parts of it together.
There are many good books about negotiation, but one of
the best and easiest to read is the little (150-page)
Penguin paperback by Fisher and Ury, Getting to Yes:
Negotiating Agreement Without Giving In, available at
www.divorcehelp.com, along with other
recommended books and software.
Copyright 2005 Ed Sherman
Ed Sherman is a family law attorney, divorce expert,
and founder of Nolo Press. He started the self-help law
movement in 1971 when he published the first edition of How
to Do Your Own Divorce, and founded the paralegal
industry in 1973. With more than a million books sold, Ed
has saved the public billions of dollars in legal fees
while making divorce go more smoothly and easily for
millions of readers. You can order his books from http://www.nolodivorce.com
or by calling (800) 464-5502.
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