A Hurdle that Must be Crossed

Without a doubt, one of the biggest hurdles in a divorce is the negotiation about the terms and conditions of the marital property settlement, spousal and child support and visitation.

There is one no right way to negotiate, nor can a single, model schedule be fashioned. Negotiations, whether face to face or through lawyers or mediators or collaboratively, can be very difficult when one or both of the parties makes unreasonable demands or imagines that he or she can walk away with everything.

Most lawyers agree that negotiations move along when both spouses are at the same place emotionally and mentally, that is, when both the husband and wife each accept that the marriage is over and must end. In a surprising number of cases, one spouse is completely blindsided by the divorce. Rufus’s announcement that he wants a divorce may flatten Rhonda, who has no idea of Roxanne. Thus, the person who wants to leave may be way ahead of the person who does not see the breakup coming — at least emotionally and mentally. The person who is left may try to stall, sometimes in hope of a reunification, but as the divorce progresses, he or she moves toward the point where both spouses understand the marriage is over.

For this reason, many couples wait a period of time between separation and the onset of negotiations.

Some couples arrive at a rough agreement about the divorce and use lawyers to cross the t’s and dot the i’s; others turn the majority of the work over to the attorneys. A husband and wife who can negotiate with each other can save money and perhaps go separate ways, if not as friends, at least not as enemies.

Negotiations frequently bring into play what are termed leverage factors, considerations made by each of the parties pertaining to the issues that are being disputed.

In divorce actions, one leverage factor is, in whose interest is it to remain married longest? Answering this question can be a starting point at the onset of divorce negotiations because it creates leverage over the negotiations. If Rufus has left Rhonda for Roxanne, Rhonda has leverage she can work to her advantage in property settlement negotiations. A person prepared to wait has a bargaining tool that can be brought to bear in property negotiations.

When they end successfully, nothing is in dispute, and divorce can proceed through the courts. The terms and conditions of the divorce — the marital settlement, spousal and child support and visitation — can be memorialize in a settlement agreement, which becomes part of the divorce record.

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