9 Tips for Reaching a Negotiated Divorce Agreement
A divorce settlement may go by many names, or can have more than one “part.” You may have a very simple Divorce Settlement Agreement if you have no children and few assets. Your agreement could be called a Marital Settlement Agreement, a Mediated Settlement Agreement or a Collaborative Settlement Agreement, depending somewhat on how the agreement was reached. You may have a Custody and Support Agreement in addition to your Divorce Settlement Agreement, or a Property Settlement Agreement if you have sufficient property to make it a good idea to separate the property into its own agreement.
In the end, it hardly matters what you call your settlement agreement. While some couples enter into an agreement the moment one moves out or when the couple decides to divorce, others are unable to reach a mutually-agreeable settlement agreement until they are outside the courtroom, ready to walk in and present the agreement to the judge. The sooner you are able to agree to a divorce settlement, the better off you will be financially, and emotionally.
Positional Bargaining Can Stall Out Your Negotiated Settlement
Far too many couples engage in what is known as positional bargaining during a divorce. Positional bargaining is the equivalent of drawing your line in the sand regarding divorce negotiations. If positional bargaining occurs at the beginning of the negotiations, the entire divorce can end up stalled out, and a Florida judge will end up deciding who gets what in your divorce. A far better way to start out your divorce negotiations is to focus on the interests you are attempting to satisfy.
As an example, you could begin your divorce negotiations by stating you refuse to take a penny less than $2,000 in spousal support. Your spouse may also take the hard-nosed approach, stating he or she will not offer a penny more than $1,000 per month in spousal support. Right away, you have reached a stalemate, with neither party being willing to budge. When positional bargaining occurs, your divorce could end up being long and drawn-out, with both you and your spouse paying much more than you otherwise would.
A better way to reach a settlement in which everyone is a winner—at least to some degree—is to state your real interests, rather than making demands. In other words, your interests in asking for $2,000 is perhaps because you will have primary parental responsibility of the three children, and you are worried about whether you will be able to meet your regular monthly bills such as your mortgage, insurance, car payment, and pay for the many expenses related to the children. Your ex may actually be worried about meeting his or her own expenses, now that you are splitting up one household into two. If you can both explain your true interests, calmly, then be willing to negotiate, at least to a point, there is much more likely to be a resolution you can both live with. Following are some additional tips which will help move your negotiated divorce settlement forward:
- Remember the old adage about not burning bridges. Particularly if you have children, you will be seeing your ex for many years to come, and you will be required to co-parent, hopefully peacefully, with your ex. If you don’t have children, or your children are grown, you might still be dealing with spousal support, or you might still own assets with your ex. Unless your ex was abusive, is an emotional bully, or has voiced his or her desire to be married to you again, there is little reason to destroy the relationship, and many reasons not to.
- Try to step outside yourself, and recognize that your ex also has feelings, emotions and perceptions about the divorce. While these perceptions may not mirror your own, it is still important to try and understand the other side. Once you acknowledge the emotional triggers and perceptions regarding the divorce your spouse has, you will be better equipped to handle their perceived reality. In many divorces, the parties are actually willing to sacrifice a particular financial gain in order to have an emotional need addressed. As an example, suppose your spouse is asking for $3,000 per month in spousal support—an amount you think is ridiculous and akin to highway robbery. However, if you are able to sit down with your spouse and acknowledge his or her feelings about the divorce, then the adamant position regarding spousal support is likely to soften, and your negotiated settlement can move forward.
- Acknowledge, then take control of, your own emotions. While your emotions may be telling you to respond in an emotional manner, it is extremely important that you learn what a “stiff upper lip” actually means, then put it into practice. There are a couple of reasons for this. First of all, when you react emotionally, your spouse and his or her attorney immediately learn what your triggers are. This gives them an advantage in the settlement negotiation, and places you at a disadvantage. Losing control of your emotions is also likely to lead to increases in financial costs, as well as your time, and can completely stall out your negotiated settlement.
- Provide all the facts. It is impossible to negotiate a fair settlement if you are not in
possession of all the facts, and vice-versa. It is never a good idea to attempt to hide assets. Not only are you likely to be found out and potentially sanctioned by the court, even if you get away with it, you will probably not feel all that good about yourself. Make sure your financial disclosure is complete, and if you feel your spouse’s financial disclosure is less than complete, talk to your Florida family law attorney about possibly hiring a forensic accountant. The only way to ensure a fair division of assets during a divorce, is to ensure both spouses are fully informed of all the financial facts. Once this has taken place, a negotiated settlement is more likely to occur.
- If you believe your spouse has a serious lack of understanding regarding what he or she will be awarded in court, take the time to educate them through the use of financial disclosures. As an example, the wife of a pediatrician believes she will receive a significant sum of spousal support, because she does not fully understand the significant overhead required for the business each month. If the husband cannot explain without sounding condescending or making the wife think he is simply trying to keep more money than he is entitled to, then financial disclosures, letters from one attorney to the other, or mediation may be in order to ensure the wife has a thorough understanding of what the court might realistically award. This is likely to help both parties reach a negotiated settlement much soon.
- Work on developing trust through transparency. A good settlement for both parties is often stopped, simply because one or both spouses don’t trust the either. Those spouses who had little access to financial information during the marriage are more likely to distrust any settlement offered, and the negotiated settlement can reach a stalemate. If this is the case, it is especially important to gather all discovery documents as quickly as possible, organize it so it is easily understandable, then provide it to your spouse. Sometimes the process of gaining trust can be as simple as asking your spouse whether there are any other documents he or she would like to see. When you go the extra mile to build some trust between the two of you, it is likely your settlement will be negotiated much more quickly.
Communication is crucial to solve potential problems and get to the heart of the matter. Negotiations—by their very nature, require communication between the parties as well as their attorneys. Communication means saying what you really mean, but in a way that is respectful to your spouse. Obviously, there are times when communication between spouses is simply not going to be possible. Perhaps there has been far too many problems between the spouses which make divorce negotiations and communications impractical—or impossible. If this is the case, then your attorneys should be allowed to communicate with one another, on behalf of you and your spouse. After all, attorneys are trained in the art of communication, so if you are unable to communicate on your own, let your attorney communicate for you in order to reach a quick negotiated settlement.
- Focus on the problem, not the person. In almost every divorce there is at least some level of emotion tied to the relationship. Even if both parties want the divorce, there can be feelings of regret, failure, sadness. In other divorces, those emotions could be anger, bitterness, and even more intense emotions. If you want to reach the best, quickest negotiated settlement possible, focus on the issues, rather than your spouse. Separate each sticking point, or each problem, from the person in order to allow yourself the ability to be objective in your discussions.
- Even when you think it simply doesn’t exist, keep looking for the “win-win.” Try to stop thinking about your divorce settlement in terms of everything your spouse gets is one less thing you get. Instead, look for the deeper issues involved, and try to negotiate a settlement that could be considered a win for each of you. As an example, a forty-year old wife is asking for what her husband considers an exorbitant amount of spousal support. If you dig a little deeper into the wife’s motivations, you would find that she hopes to finish her college degree after the divorce, and she is concerned that her husband will take a different, lower-paying job, as he has done in the past. The wife is afraid she could go back to college, then end up having to leave once the spousal support diminishes. Once the husband knows the wife’s true motivations about the spousal support, he might be much more willing to award the wife a larger portion of the marital assets in order to allow him more freedom with his work, while giving the wife some security. Such a solution is a win-win.
Questions About Your Settlement Agreement
You may have lots of questions regarding your divorce settlement agreement. For example, what if your ex presents you with a proposed agreement that you absolutely hate? Remember, this is a proposed settlement agreement, and you are in the beginning stages. It is absolutely normal that you will go back and forth on this agreement, but you have to have a starting point, so consider this agreement your starting point. Go through and make notes on the things you would like to have changed, but in the process, remember that the idea is to compromise.
On the flip side, you may wonder whether you should sign the proposed agreement if it seems okay to you. While you can, it is a much better idea to let an Ayo and Iken attorney take a look at the proposed settlement agreement. There are too many times when the wording of a sentence, or lack of legal knowledge regarding an item in the settlement can lead to serious trouble down the road. Even if, or perhaps especially if, you are pressured by your spouse to “just sign it,” and to “not get the lawyers involved,” remember that this is your future, and you deserve an equitable marital settlement.
You may wonder what would happen if you and your ex both decide that one aspect of the settlement is not working for you, and you both agree to change it. Never fear, this is not school, and you won’t be in any trouble, but it is important to think about what might happen if you and your ex have a falling out, and he or she denies agreeing to the change. If you both agree that something should be changed, make it official by modifying your old settlement agreement in writing. And speaking of modifications, child support, custody, visitation agreements, and spousal support are all potentially modifiable so long as one of you can show there was a significant change in circumstances following the entry of the original order. The single best thing you can do to move your divorce settlement along, is to speak to an experienced Ayo and Iken family law attorney as soon as possible.