Negotiating Divorce

There are few words in the law more beautiful than settlement. The word denotes:

- No more fighting
- No appeals
- Less cost
- The parties, rather than a third party, control their own fate
- More care can be given to use creative approaches
- More care can be given to use the tax code to both partiesí benefit

Settlement is important in family law particularly because there are children. The ugliness of a trial can permeate relationships for years. I therefore believe that the ideal divorce is one in which nothing is done to create or add to the kind of animosity that would prevent the parties from dancing together at their childís wedding.

While a bad settlement may sometimes beat a good trial, a good settlement beats a bad settlement. A good settlement doesnít just happen. It is the result of good negotiation. And good negotiation is the result of certain rules.

There is a wonderful scene in the movie Butch Cassidy and the Sundance Kid. Robert Redford is going to fight the head of the gang for supremacy, but first he suggests they discuss the rules for the fight. When the much bigger and meaner opponent drops his knife to his side to ask, incredulously, "What? Rules, in a knife fight?" Robert Redford uses the opportunity to kick him in a very sensitive part of the male anatomy.

Usually, the parties are going through a divorce because there is a lack of trust, communication and cooperation in the marriage. When a legal action starts and lawyers get involved, this lack of trust, communication and cooperation does not lessen. Rather, it usually gets worse. A certain degree of trust, communication and cooperation is necessary to reach a settlement. Paradoxically, the very reasons that bring the parties to the bargaining table are the major impediments to settlement.

As a result, there needs to be some basic rules in the divorce "knife fight." Here are a few suggested rules for lawyers and clients to adopt, not to kick each other in sensitive spots, but to help overcome these fundamental impediments to settlement.

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