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By Ed
Sherman |
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Divorce--Negotiating Agreement:
Ten Steps
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You get a higher degree of compliance with terms of agreement, a much
lower chance for future courtroom conflict, co-parenting is smoother,
support payments are more likely to be made in full and on time, and you get
on with your life more quickly.
Don't expect negotiating with a spouse to be easy. There are lots of
built-in difficulties--so many that you may want professional help from a
good mediator. But, okay, so there are problems--that's nothing new in the
world of divorce. Let's look at exactly what you can do about it. Here are
ten steps you can take to make your negotiations work:
1. Be businesslike:
- Keep business and personal matters separate. You can talk about
personal matters any time, but never discuss business without an
appointment and an agenda. This is so you can both be prepared and
composed.
- Act businesslike: be on time and dress for business. Don't socialize
and don't drink; it impairs your judgment.
- Be polite and insist on reasonable manners in return. If things start to sneak into the personal or become unbusinesslike, say you're going to stop if the meeting doesn't get back on track. Ask to set another date. If matters don't improve, don't argue, don't get mad, just get up and go.
2. Meet on neutral ground: Find a neutral place to meet, not the
home or office of either spouse where there could be too many reminders,
memories, personal triggers. Or the visiting spouse could feel at some
disadvantage and the home spouse can't get up and go if things get out of
hand. Try a restaurant, the park, borrow a meeting space or rent one if
necessary.
3. Be prepared: Get control of the facts of your own divorce;
understand how the laws of your state apply to the facts; find out the
probable outcomes under the law; clarify your goals. You can also prepare by
trying to understand your respective emotions and past patterns. Just the
fact that you are trying to do this will help make things a little better.
4. Balance the negotiating power:
- If you feel insecure, become informed, be well prepared, use an
agenda, get expert advice and guidance. There's never any need to respond
on the spot: state your ideas, listen to your spouse, then think about it
until the next meeting. Don't meet if you are not calm; if the meeting
doesn't stay businesslike, don't continue. If this happens often, consider
using a professional mediator.
- If you are the stronger spouse, help build your spouse's confidence so he or she can negotiate competently and make sound decisions. And listen, listen, listen.
5. Build agreement:
- Start with the facts: You should by now have gathered and exchanged
all information. If not, complete the information gathering (see Step 6 of
my article "Divorce--Overcoming Obstacles to Agreement"), then try to
agree on what the facts are. Write down the facts you agree on and list
exactly what facts you do not agree on. Note any competing versions then
do research to resolve the difference by research and exchanging records.
Compromise. If you can't prove some fact to each other, you may have a
hard time proving it in court.
- Make a list of the issues and decisions you can agree on. Write them
down. This is how you build a foundation for agreement and begin to
clarify the major issues between you.
Next, write down the things you don't agree on. Always keep trying to refine your differences--to make them more and more clear and precise. Try to break differences down into digestible, bite-sized pieces.
6. Consider the needs and interests of both spouses: Avoid taking
a position. Consider your needs, interests and concerns alongside the facts
of your situation. Work together on brainstorming and problem-solving; look
for ways to satisfy needs and interests of both spouses and try to balance
the sacrifices.
7. State issues in a constructive way: "Reframing" is when you
restate things in a more neutral way, to encourage communication and
understanding.
For example: One spouse says, "I have to keep the house." Reframe: "What I
would like most is to keep the house, that's my first priority, because . .
. What the house means to me is . . ."
8. Get legal advice: Typically, legal questions come up as you
negotiate. Get advice; find out if the laws of your state provide a clear,
predictable outcome on your particular issue. Don't hesitate to get more
than one opinion.
9. Be patient and persistent: Don't rush, don't be in a hurry.
Divorces take time and negotiation takes time.
Whenever someone hears a new idea, it takes time to percolate. It takes time
for people to change their minds. It may take time to shift your mutual
orientation from combative to competitive to cooperative. So don't just do
something; stand there! A slow, gradual approach takes pressure off and
allows emotions to cool.
10. Get help: Negotiating with your spouse may not be easy; you're
dealing with old habits, raw wounds, entrenched personality patterns--all
the obstacles to agreement all at once. A third person can really help keep
things in focus.
Mediators are professionals who are specially trained to help you negotiate;
they are expert at helping couples get unblocked and into an agreement.
Mediation is very effective and it usually goes quickly.
Before you begin to negotiate, get a copy of
(the book from which this article was excerpted) for you and your
spouse. Then, if possible, discuss parts of it together.
There are many good books about negotiation, but one of the best and easiest
to read is the little (150-page) Penguin paperback by Fisher and Ury,
Getting to Yes: Negotiating Agreement Without Giving In, available at
along with other recommended books and software.
Copyright 2005 Ed Sherman
Ed Sherman is a family law attorney, divorce expert, and founder of Nolo Press. He started the self-help law movement in 1971 when he published the first edition of How to Do Your Own Divorce, and founded the paralegal industry in 1973. With more than a million books sold, Ed has saved the public billions of dollars in legal fees while making divorce go more smoothly and easily for millions of readers. You can order his books from or by calling (800) 464-5502.
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