Written by Rebecca Zung, Esq.
Sweaty palms. Heart racing. Fear of rejection. Not wanting to look greedy. Any of these sound familiar when you’re looking at negotiating anything? Now try negotiating during the fight of your life – divorce. I’ve said for years, including in my book and on the many media appearances I’ve made, that there is a divorce paradox. That is, that during the worst most traumatic time of your life (divorce and death are always at the top of any of these surveys), you have to make the most critical decisions of your life. Decisions that will affect the things that mean the most to you, and will impact them forever. These are your children, your money, your home and your business. No wonder it’s stressful. The good news is that there are ways to combat this fear and you can actually approach divorce negotiation in a calm, planned and methodical way that will inch you that much closer to your new life. That, my friends, is the concept of leverage.
For some people, particularly women, or others who think leverage means “game-playing” – this may be a difficult topic. Every single person who comes into my office for an initial client consultation says “I don’t want to fight.” The one thing most couples agree on is that they don’t want to spend a lot on legal fees. But many people spend thousands and sometimes even millions. This is because naturally and understandably, everyone want what’s fair. The rub is that everyone has their own version of what the concept of “fair” means in divorce. What’s fair to one spouse is usually not feeling fair to the other spouse. Other people just don’t want to appear greedy, or don’t want to play games.
How to negotiate a divorce settlement with your spouse:
The Divorce Boat Is Not "The Love Boat"
Many people, when they make the decision to divorce, are just thinking about the other side of the divorce. They are not thinking about the actual divorce process. It is as if you are on land now. Y ou don’t love the land that you’re on, and you know that there is a more appealing place to live on the other side of the ocean, but in order to get there you have to get into a boat. The Divorce Boat. Like the Love Boat, except not. While you’re on that Divorce Boat, you will be tossed around, high winds will come, maybe even heavy rains, and you’ll probably feel seasick. Sometimes you’ll feel like giving up and other times, you might think about turning back. But eventually you start to see land and sun and realize that you’re going to be okay. It is during this period of being on the Divorce Boat that you’ll have to think about negotiating your divorce settlement.
A huge element of divorce is negotiation. While television and movies have depicted and focused the courtroom drama and theatrics, the truth is 95% of divorce cases settle before they get to trial. In fact, many states actually require cases to be mediated prior to even coming into the courtroom. The court system is highly backlogged and all judges have way too many cases to handle on their dockets. They are desperate to find a way to pare down their caseloads and the biggest way that they do that is by forcing parties to sit down with a dispute resolution expert and hash it out. They settle through some type of negotiation whether it’s negotiated by attorneys on behalf of clients, or directly between the spouses in mediation.
Negotiation in general is a very highly honed and learned skill. The first types of negotiations that come to mind when we think about negotiation are buying a car or negotiating a salary, but the truth is that we are trying to persuade people to do what we want them to do on a daily basis. That said, divorce negotiation is often the highest stakes form of persuasion we can encounter and the most uncomfortable. Who knows how to push your buttons more than your soon-to-be-ex spouse? Divorce negotiation is its own special kind of beast, because of the intense emotion that is involved with it. Unlike business negotiations you are negotiating with someone one who knows you inside and out, and vice versa. Plus, there is a huge emotional side to these negotiation. So creating leverage to help you as you negotiate these really important issues is key.
What Is Leverage & How Do You Get It?
Leverage is what you need to incentivize the other person to settle. This might be information, money, or anything that you know will cause the other side to want to resolve the case, and more importantly in a way that you want it to settle. Leverage is key in any negotiation but especially so in divorce or family matters. Getting to a fair settlement saves both parties time, money and stress.
So how do you get leverage? First, you have to know the value of what you have that the other side might want. This means the first step in your analysis, is determining what you think is driving the other side. It might be not wanting to pay alimony, wanting to get alimony, wanting as much parenting time as possible, not wanting certain information to come out in public (i.e. at trial), wanting to stay friends, or simply revenge. Just as your soon-to-be-ex knows what drives you, you probably also know what is driving them.
The Importance of Knowledge
Do your research and be prepared. Figure out the value of things – this means you might need to do appraisals, get valuations, or have legal research prepared and ready to present – bottom line, know your facts. If you and your spouse cannot come to an understanding on your own, and litigation is necessary, make sure to figure out what the other side might argue on these issues, and then be prepared to meet that argument. One of the big mistakes people make here is assuming that mediation or negotiations outside of the courtroom are casual conversations. If you don’t want your mediation to just end up being an expensive conversation, then you have to prepare for it as if you are going to trial. Remember that your mediator is bound by a certain confidentialities as is the mediation process. No offers made in negotiation can be used against either side in trial. You can also tell your mediator certain things that you think might be helpful to them to assist with resolution and ask that it not be shared directly with the other side.
Determine your Best and Worse Case Scenarios
Many people think that if they don’t want to fight, they shouldn’t be thinking about “leverage” – that you only need that if you plan to fight. The truth is that if you may need leverage to incentivize the other side to come to a resolution. Also remember that neither side is going to agree to their worst case scenario, which is your best case scenario. So figure out what your choke point is – what is the least you can live with, or what is the point at which you are willing to take your chances and let the judge decide. You do all of this work before you even wake up on the day of mediation. While you are doing this preparation, also come up with your first offer and have it be more than what you’re willing to live with.
It's Not Personal
You and your spouse are in what may feel like a game of Survivor, but it doesn't have to be that way. If you’re dealing with a spouse with a personality disorder or narcissistic tendencies, your situation may seem particularly challenging, but it often comes down to simple psychology – everyone wants to feel like they’ve gotten something. So the trick in this situation is to decide what you’re willing to live with ahead of time and then if you land there, you know it’s a win.
A key point in all of the above is NOT to give away your leverage too early in the game. Sometimes this can be a bigger problem for women but not always. Make sure to save your leverage for when you are going to need it. This may not be (and usually isn’t) right at the beginning of the process. Hold onto it until the time is right. A good example of this might be that you don’t really want the house but you know your spouse would like to keep it. Don’t tell your spouse right up front that you don’t want the house. If your spouse ends up trying to nail you to the wall on another issue then you might decide you want that house after all. Y our spouse may be trying to figure out what is incentivizing you too so keep your aces in your sleeve until you need them.
It is really critical to have a true understanding, as you move through the process of divorce, of what you must have and also what you’re willing to live without (yes, you have to come up with things you can live without). You are not going to get everything you want – you can’t split things into two and end up with a whole. But what should give you solace is that your soon-to-be-ex won’t either. Also, prioritize your must-haves.
The Bottom Line
So if you are currently contemplating filing for divorce, or you are in the throes of one now, and whether you are negotiating through your attorneys or directly with your spouse, make sure you prepare properly and use your leverage wisely. In the end, a good divorce settlement that you and your ex come up with yourselves is usually the best for everyone concerned but if you both decide to hire lawyers, be sure that it maximizes the return for both sides. Keep in mind that a litigated court order is usually really unsatisfying for everyone. Judges may not be as creative as you can be. The judges job is to apply the law and unfortunately, they can make bad decisions sometimes. That’s why there is an appeal process. A negotiated settlement is one in which both parties participated and chose. Plus it’s not appealable, is less costly and the process is more private.
Creating the right leverage will allow you to get the fairest settlement, for the least amount of cost and in the least amount of time, so you can move on with getting to that new land, where you can begin to build your new beginning and new future.
Rebecca Zung is a Top 1% divorce attorney in the U.S. She is also the author of the bestselling divorce book and host of a top podcast, both called Breaking Free. She has also appeared on Extra!, Dr. Drew, NPR, and in Forbes, Time, Newsweek, and Huffington Post, and many others.