How to Successfully Negotiate a Settlement

Filed in Divorce, on July 18, 2017

Many people view divorce as a “winner take all” fight to the death. Others feel it is a chance to get even or expose the other spouse for the lazy, good for nothing person he or she really is. Those who hold these views often find themselves broke and unhappy with the result when the divorce is final, blaming their spouse or the attorneys.

If you are a person with these views, you are headed for a very expensive and lengthy divorce. The key to exiting a marriage emotionally and financially intact is to negotiate a settlement that each party can live with. Each party will have to make concessions in exchange for the things they really want. In my almost 20 years of divorce practice, I find that making reasonable concessions not only costs less, but also has less of an emotional toll on my clients. The following are some tips I’ve learned over the years to successfully negotiate a settlement.

• Meet with your attorney prior to the settlement conference. If you cannot meet, you need to at least have an extended phone call. Discuss how you want your attorney to proceed during the settlement conference. Do you want to wait and see what the other side offers first? Do you want your lawyer to pitch an offer first? Discuss non-negotiable issues and why you are not willing to negotiate. Discuss negotiable issues and the limits of what you are willing to offer.
• Identify your goals from most important to least important. Discuss your goals with your attorney and determine if they are realistic. If you do not agree with your attorney’s assessment, get a second opinion. Remember your most important goals throughout the negotiations. Don’t waste time on things you don’t care about.
• Show respect. You married this person for a reason. You respected your spouse enough to agree to spend the rest of your life with him or her. Try not to interrupt while he or she is speaking. Do not be afraid to recognize your spouse’s strengths. If your spouse has been the primary caregiver for the children, take an opportunity to show appreciation for the difficulty and sacrifice that role carries with it.
• Listen to your spouse and show empathy (not sympathy). You are not going to convince your spouse by focusing only on your needs. Let your spouse know you hear what he or she is saying and want to find a way to address the concern. If your spouse never worked during your 20 year marriage and is anxious about divorcing because he or she will have no income, imagine yourself in that situation. What would you do to ensure you had enough income to live? Is this something you can offer to your spouse?
• Be creative. In a settlement, you have the most control over how your assets are divided and how parental allocation (what we used to call “custody”) is determined. When you are creating a settlement agreement, you have the control to be as creative as you want (within the bounds of the law). When you fight over issues in court, you lose that control and give it to a person (the judge) who doesn’t know you very well. Judges usually do not have the incentive to come up with creative settlement ideas, whereas the parties do. Don’t be afraid to think outside the box.

If you can keep these helpful tips in mind during your negotiations, you will find this process easier and less confrontational than insisting on a trial. Even if you cannot settle the whole case, identify the issues that are not contested between the two of you. This can save a lot of time and aggravation for yourself, not to mention money.