Negotiating Your Divorce With Good Tactics

Negotiating is a blend of science and style. Many successful attorneys seldom appear to be applying a system of any kind, while others may seem to be following some rigid formula. Attorneys generally use the techniques and approach that they have refined over the years, as they should.

At this point, suggestions on the way your settlement negotiations should be handled should not be necessary. You are comfortable with your attorney. You have no reason to try to direct the negotiations and the trial. Because you have informed and worked with you attorney throughout your entire divorce proceeding, you can now comfortably rely on him or her and simply continue to work as part of the team. This is the time that your attorney’s skills will be the most valuable, enhanced by the facts that you have supplied and the preparation of your entire team.

One of the most important variables at this point in your case is the extent to which earlier court hearings, and any temporary orders that were issued, affect your settlement posture. You and your spouse may have found that you can live with certain temporary orders made several months ago, either by agreement submitted to the court for approval or as determined by the court itself at a hearing. If so, you have broken the resolution process down into several parts and your case has a high chance of settling because the atmosphere is calmer that it would otherwise be. You’re one or more steps toward the overall resolution already.

One-sided temporary orders, on the other hand, normally make it impossible to settle a case. As an example, assume that you were lucky enough to get everything you wanted in the temporary orders. You’re not about to settle for any less in the permanent orders. Your spouse is still mad about the temporary orders and wants to tip the scales the other way this time. As a result of your earlier “victory” you may be unrealistic, and your spouse may be vengeful. Yet even on these facts, your attorney may be able to seize the opportunity by offering a small compromise that both you and your spouse may see as far more acceptable than the unknown, perhaps drastically different result at trial. Remember, temporary orders typically sacrifice full consideration of all the facts and arguments in order to put some order in place to protect everyone’s interests, while at trial entirely new legal arguments, perhaps unknown at the earlier hearing may produce a much different result. You and your attorney are prepared and have the probable trial outcome in mind.

Keep your overall settlement objective in mind as you deal in detail with each issue. For example, a request for attorney’s fees can make a case difficult to settle. If you are making a relatively small claim, founded upon your spouse’s lack of cooperation, be ready to consider waiving your claim for fees in order to settle the case itself on terms that meet your important long-term objectives. It’s economically foolish to take your case to trial just to recover fees equal to a few percent of the property involved. Likewise, consider offering to settle the case if your spouse will waive his or her claim for attorney’s fees.

Larger requests for attorney’s fees, particularly for your fees and costs of litigation, assume a great deal more importance—if they are based on law and fact. As they increase in size relative to the amount of property at stake, your attorney’s fees and costs claims become an asset on your schedule. Don’t give away a meritorious request claim for substantial fees without getting value in return. The judge presiding over your court-supervised settlement conference will inform your spouse of the facts of life. If your spouse continues to be unreasonable, that’s a major reason why trials are available, to keep one spouse from having veto power over the other.

With your attorney’s guidance, consider all aspects of these—and all—claims. Attorney’s fees incurred in producing or protecting taxable income are tax deductible. You’ll pay about three-fourths, after taxes, of your bill for tax advice, obtaining spousal support or defending your business. If your request for fees is blocking settlement, there may be less at stake than you realize. This same logic may apply to your spouse’s position, a point to bring up in settlement.

Don’t keep your settlement overtures bottled up and then suddenly release them just before trial. You and your attorney have helped nurture the possibility of settlement throughout your case. Your attorney knows your goals, and also learns your spouse’s objectives from you and your spouse’s attorney. Settlement is fostered by inquiries and suggestions as the case proceeds. Your proposal will be well received, when it comes, because it meets many of your spouse’s important objectives.

The next step in the process will determine whether the negotiations will move in a successful direction. When one spouse makes a settlement proposal, the other spouse’s counter-proposal often "accepts" only the favorable portions of the proposal while proposing another way of handling the rest. If the counter-proposal is reasonable and shows a desire to work toward settlement, discussions start in earnest. If the response is unreasonable, particularly if problems arose during discovery, don’t waste time and money on settlement. Continuing discussions under these circumstances would amount to continually raising your offering to your spouse until it was finally accepted. Your case is going to be tried in court.

While the focus of this discussion has been properly termed “procedure,” you are incurring attorney’s fees and costs throughout—a matter of substance. Know when to call it quits in settlement talks. You can’t afford to continue incurring attorney’s fees and costs in trying to squeeze a settlement out of unwilling parties if you’re going to end up trying your case anyway. Document your attempts to settle the case reasonably, and then request the court to award you the portion of your attorney’s fees and costs due to trial of issues that your spouse should have settled.

Going to trial is both expensive and risky. You may ask your attorney, “Can’t we afford to spend a little more time attempting to settle?” This is a very difficult line to draw, often because personal rejection is highly subjective. For a more objective approach, try to measure the closure in your discussions, from one communication to the next. Are you, however slowly, resolving some issues and putting them behind you? Or, is nothing being resolved? Or worse, are new issues are being added?

For the moment, let’s assume that you and your spouse have settled. In the next section we’ll talk about the document that contains the terms of your settlement. [The section following it will return to the court process concluding with trial and a judgment.]