Divorce Negotiation

Negotiating a divorce settlement is the most common way to resolve a divorce.

In most cases, negotiating your divorce is infinitely wiser than going to trial.

The first step in a successful negotiation, one that may be overlooked, is for the lawyer to fully understand the client's goals. There may be a tendency on the part of the lawyer to project upon the client what the lawyer thinks the client's goals ought to be. Although the lawyer is looking out for what he believes are the client's best interests, this may not help the client achieve her actual objectives.

The lawyer must also try to understand the other spouse. Perhaps the spouse has some particular pressure point that can be poked from time to time. Maybe there is something that can be offered to the spouse, something that hadn't occurred to the client.

As discussed endlessly in the classic treatise, "Getting to Yes," the matrimonial lawyer should certainly be on the lookout for win-win opportunities; although the fact is that divorce is often zero-sum.

Transaction costs (meaning attorneys fees) must also be considered; perhaps litigation could produce a better result, but at what cost?

Consider the following example, which involves the zero-sum nature of equitable distribution, transaction costs, and the importance of personalities:

  • Husband and Wife's marital estate consists of a single joint account with $100,000.
  • Prior to hiring attorneys, Husband offers Wife $45,000.
  • Husband says that if Wife does not take the offer, he will go to trial.
  • Going to trial will cost each party $10,000 in counsel fees. At the end of trial, the account would probably be split 50/50.
  • Wife says that Husband is angry and would be willing to go to trial just to spite her, even if he ends up with less money.

What should Wife do?

I leave that as a question for you to ponder.

On a different note, here is a brief overview of how a divorce settlement works, procedurally:

  • Each spouse has their own attorney.

  • The attorneys discuss settlement by phone or through written settlement proposals.

  • Discovery is exchanged informally, although usually both parties will prepare a sworn Statement of Net Worth.

  • There may or may not be in-person settlement conferences. This depends mostly on strong the emotions are in the case. If the tension is still high for one (or both) of the parties, a four-way settlement conference is not likely to be productive.

  • Either attorney can initiate litigation if the negotiations break down. Litigation does not necessarily mean that the negotiation ends. Most litigation concludes with a negotiated settlement agreement.

  • When an agreement in principle is reached, copies of a draft settlement agreement are circulated and language is edited until it's in final form.

  • The settlement agreement is signed by both parties and notarized by the attorneys.

  • The settlement agreement is filed with the divorce papers, and sometime thereafter the court issues a judgment based on the agreement.