Most lawyers will tell you not to even try to negotiate a divorce settlement with your spouse. That’s because most lawyers believe that they can negotiate for you better than you can negotiate for yourself. After all, they have studied negotiation strategies. You haven’t.
Usually, they can … but not always. That’s because when your lawyer gets involved, your spouse’s lawyer gets involved. You end up with two lawyers playing chess with your life. Plus, you pay for that privilege.
Many times, you can do just as well for yourself. Sometimes, you can even do better.
What’s more, even if your lawyer is negotiating “the big stuff” in your divorce, you’re still probably going to have to negotiate “the little stuff” directly with your spouse. Unless, of course, you don’t mind paying your lawyer $300 an hour to help you divide up the Tupperware.
Why You Might Want to Negotiate with Your Ex (or Soon to Be Ex)
Negotiating your own divorce settlement – or even negotiating part of your divorce settlement – can save you time and money. You eliminate the middleman (your lawyer) and hammer things out yourself.
Negotiating directly with your spouse also has an added benefit that most lawyers won’t tell you about: buy-in.
If you and your spouse have both been actively involved in your own divorce negotiations from the start, you are much more likely to accept the divorce settlement you ultimately make.
If you think that doesn’t matter, or that you don’t care, you’d better think again. Divorce courts are packed with people fighting with their spouse AFTER they are divorced. When you feel like your divorce settlement was jammed down your throat, you usually have no problem trying to change it later if you can.
The Dangers of Negotiating for Yourself
Of course, negotiating for yourself can be dangerous. If you don’t know how to negotiate, or you don’t know what you have to negotiate about, you can end up giving away the farm without even realizing it.
At least, that’s everyone’s fear.
But negotiating with your spouse isn’t rocket science. Sure, there are some key negotiation strategies that you’ve got to know. But they’re not particularly hard to learn. While you might not be motivated to learn them at the beginning of your divorce, if your divorce starts dragging on, and your legal fees start skyrocketing, you may find yourself negotiating with your spouse just so you can finally get your divorce behind you!
So, even though you may think you would never negotiate with your spouse in a million years, you can easily find yourself doing exactly that. It happens all the time.
If you are still on speaking terms and want to try to negotiate with your spouse – either alone or with a mediator – it’s definitely worth a try. Before you open your mouth, though, you need to know what you are doing.
Here are 10 tips for how to negotiate with your spouse, or your ex.
Negotiation Strategies: How to Negotiate a Divorce Settlement with Your Spouse
1. Understand Your Finances BEFORE You Open Your Mouth.
If you don’t know what your financial situation is, or you don’t understand your finances, you MUST get help BEFORE you negotiate anything. You wouldn’t ride in a car being driven by a blind man. Don’t try to negotiate yourself unless you have a firm grasp on your finances and understand what you own and owe.
If you need help, hire a financial advisor to sit down and explain your finances to you. If, after doing that, you still don’t feel comfortable talking about finances, or you don’t understand how they work, then don’t negotiate for yourself. The cost of lawyer-led negotiation is nothing compared to what you will lose by negotiating yourself.
2. Learn Your Legal Rights and Responsibilities – Especially Regarding Your Kids.
Judges care about children. Unless they are given a really good reason not to do so, they will require you to comply with the child support laws of your state. They will require a parenting schedule that allows both you and your spouse to have a relationship with your children. They will demand that your overall divorce settlement be fair.
You don’t need to have a law degree to understand the basics of what you need to know to negotiate a fair divorce settlement. Spend an hour or two with your lawyer or a divorce educator learning how the divorce system works and what the law requires. Do your homework BEFORE you start negotiating.
3. Know What You Want and Need.
This sounds so simple. Yet so many people wander through their divorce wanting “what’s fair” without ever stopping to consider what “fair” really looks like. They can often tell you what they DON’T want. But ask them what they DO want, and it’s hard to get a straight answer.
If you’re going to negotiate for yourself you have to know exactly what you want. You also need to know what you need. To really know those things, you’re going to have to have a budget and a balance sheet. Once you’ve identified your “wants” and “needs,” rank them in order of importance. You will never get everything you want, but if you know what is most important, you can at least negotiate so you get what you need.
4. Know Your BATNA and your WATNA.
One of the key negotiation strategies involves knowing your BATNA and WATNA. BATNA stands for “Best Alternative to a Negotiated Agreement.” WATNA stands for “Worst Alternative to a Negotiated Agreement.” You need to know both to negotiate successfully. In the context of divorce, your BATNA and WATNA will be the best and worst things that could happen to you if you couldn’t settle your case and had to go to trial.
How do you figure out your BATNA and your WATNA? Ask your lawyer what about the best and worst things that could happen if you go to trial. Once you know that you can figure out whether going to trial would ever make sense. For example, if your spouse’s best settlement proposal is worse than the worst you could do at trial, then accepting that settlement proposal wouldn’t make sense.
5. Know What Your Spouse Wants and Needs.
Knowing what you want and need before you start to negotiate is important. Knowing what your spouse wants and needs, though, is just as critical. (It also helps if you can figure out your spouse’s BATNA and WATNA too.)
The more you have insight into what your spouse wants and needs, the more you can negotiate in a manner that will satisfy both of you. (You may think you don’t care about what your spouse wants or needs, but that kind of attitude is short-sighted. Negotiation requires cooperation and compromise.) The more you can create a “win-win” situation for both you and your spouse, the more likely you are to succeed in settling your case amicably, and on terms that you want.
6. Know Your Bottom Line.
One of the most important negotiation strategies you must understand when dealing with your ex is to know your bottom line BEFORE you negotiate. As Kenny Rogers says, “You gotta know when to hold ‘em, know when to fold ‘em.” If your spouse won’t settle on terms you can live with, then you have to be ready and able to walk away. That means you have to know what you can and can’t live with before you start negotiating. It also means that you have to have the courage to reject proposals that fall seriously short.
Another important (and often overlooked) aspect of knowing your bottom line is reality testing it before you let it become “your bottom line.” You may want the sun, the moon and the stars, but if the most you are legally entitled to get is a passing asteroid, then clinging to your desires isn’t smart. It’s ridiculous. When your “bottom line” isn’t realistic, negotiating a fair agreement is next to impossible.
7. Check Your Emotions at the Door.
Yes, this one is tough. This is why most people would rather let their lawyer negotiate their divorce settlement than try to do it themselves. This is also why having a good therapist while you are getting divorced is invaluable.
It’s hard to keep your emotions out of your negotiations. But nothing will derail your discussion faster than falling back into the same old argument you have had with your spouse a hundred times during your marriage. If things get too heated, take a break. Resume your negotiations once you and your spouse have cooled down.
8. Be Flexible.
Your way is not the only way to do things. (Sorry!) The more you can keep an open mind and brainstorm alternatives, the more likely you will be to settle your divorce amicably.
If you’re not sure what kinds of alternatives you have, ask your lawyer. S/he can help come up with various settlement scenarios that might meet your needs, your spouse’s needs, and your children’s needs. Listen to your spouse’s ideas. (I know. That’s hard.) But, the more options you have to choose from, the more likely it is that you will land on a settlement that works for everyone.
9. Set the Ground Rules Before You Begin.
When and where you negotiate matters. In a perfect world, you and your spouse will negotiate in a neutral place. You will set aside a couple of hours so that neither one of you is worried about missing an appointment if the negotiations take too long.
You and your spouse also need to make sure that each of you agrees on who will write down what you agree on, and whether agreements are subject to your attorneys’ approval before they become final. Nothing will poison your relationship faster than if one of you tries to change something AFTER you both thought you had reached an agreement.
10. Always Have a Strategy and a Plan.
What does having a plan mean? It means knowing what you want and brainstorming several different ways that you can get what you want BEFORE you start negotiating. Having a strategy means that you don’t start your negotiation with your bottom line. You start by asking for more so that you have something to give up. Remember, the best negotiation is the one in which everyone feels like they “won” something. (And, in divorce, it’s also the one in which everyone feels like they can live with what they lost.)
Should You Negotiate Your Own Divorce?
Negotiating a divorce settlement is not for everyone. It isn’t easy, and it isn’t fun. But, it is doable – even if you don’t have a law degree or a background in finance.
If you decide to give direct divorce negotiation with your spouse a try, make sure to be prepared! Get divorce settlement advice from your attorney. Go through these ten negotiation strategies and make sure you know the basics of your finances, and your legal options, before you start. Know what you want and need. Have a plan, and be flexible.
No matter what, analyze your options before you start. Be honest with yourself. If you’re afraid of your spouse, or you’ve never been able to stand up for yourself in your life, trying to negotiate a divorce settlement yourself may be incredibly foolish.
But if you and your spouse can still be civilized to each other, and you’re willing to do the work it takes to prepare to resolve your divorce issues, then negotiating with your spouse can save you a huge amount of time and money.