April 24

10 Negotiation Strategies: Negotiating a Divorce Settlement That’s Fair


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amicable divorce, divorce blog, divorce mediation, divorce process, DIY divorce, negotiation


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.

Word negotiation in red on a chalkboard, with mediation, permit, reconcile and other such words in chalk.

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.

3D turquoise word "Negotiation" ending in an arrow

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.

Man and woman negotiating a divorce settlement sit at a desk with hands clasped.

 

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.

Yellow Road sign saying "What do You want?"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.

Cartoon of two sheep, one totally sheared saying," How did the negotiation go? Not too well."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.

3D figure surrounded by thought bubbles saying "Option 1, Option 2" etc.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.

Businessman Notepad Word Plan ConceptIt’s great to have goals. But, if you don’t have concrete negotiation strategies that will help you achieve your goals, your chances of actually accomplishing what you want go down dramatically.

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.

If you don’t want to negotiate alone think about hiring a mediator, or doing a Collaborative Divorce. That way, you will have more support while you are negotiating.

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.

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  • Would not have been useful in my divorce. My ex demanded an amount of alimony that was greater than my entire paycheck! She and her attorney would not budge from that amount even when the judge told them in the pretrial hearing that it was literally impossible! We ended up with a long pointless trial and she got one half my net pay.

  • The worst possible thing an ex spouse can do is raise false allegations of abuse. I lost my licenses and right to see my children. Fast forward 5 years.
    Judge awarded no future earnings and children were given 50 percent with each parent. As the father. I have since rebuilt my empire and working hard for my children’s future.
    She – in the other hand, has gone through 3 failed relationships. Is living paycheck to paycheck and lost my children’s respect due to us walking in in her while she cheated.
    Karma-
    It’s sad. But I can guarantee that my children will be successful in life.
    Because the remain with their father in a year. The younger will turn 14 and make his decision of living with me.
    I will not remarry nor date. My focus is on my wonderful boys.
    Good luck. And thanks for the article.
    Los Angeles Father.

    • I’m glad you liked the article.

      It’s sad that your ex wife has ended up so poorly. But it sounds like you have done well for yourself and your boys. It also sounds like you are totally committed to them. I commend you.

      Karen

  • While this is good stuff, its a bit like a basic recipe that doesnt provide explanations of the utensils and pots and pans. Especially #5 ” Know What Your Spouse Wants and Needs” is dangerous stuff. Unfortunately your spouse is most likely not your negotiation partner, but rather your negotiation enemy at this point – meaning one of the sides is likely not interested in a “fair agreement” which is a core principle underlying negotiations. What is missing is the step prior to mediation, that should involve some kind of psychological coaching and balancing, which allows both partners to really align expectations for the divorce and to provide a foundation for the mediations. Since at least one partner is still hurt, a WATNA is unavoidable, as long as that partner is hurt.

    • I don’t know that I agree that you’re always going to end up getting your worst alternative to a negotiated agreement (WATNA) if your partner is still hurt. Certainly, if you can hold off negotiating until your spouse doesn’t want to see you boiled in oil, you’ll probably do better. Unfortunately, that’s not always possible. (Some people never get over their divorce. They never stop being angry with their ex.)

      Sometimes, you’ve just got to move forward even when one person isn’t interested in getting a “fair agreement.”

      Unfortunately, that’s often when negotiations break down and you end up going to trial. (Or having a settlement forced down your throat.)

      Negotiating your own divorce settlement definitely isn’t for everyone. But, if you can do it, you can save a ton of time. money and grief.

      Karen

  • I have a lot of debt and a house with no equity. My retirement account. He made bad money decisions and lost everything through the final ten years of marriage (property and businesses). We would have been foreclosed on by now if it wasn’t for me working two jobs. Now he’s asking for a ridiculous amount of money. Mediation failed. I can’t take on any more debt. I feel like a judge is my only way out.

    • I hate to say it, but sometimes a judge IS your only way out. In that case, the best thing you can do is keep moving your case forward toward trial as soon as you can. The sooner you get a decision, the better.

      Also, if your house is that close to foreclosure, you might want to think of selling it. That may not be what you want to do. But, if nothing else, it might be worthwhile to talk with a realtor, a credit counslor and a financial adviser. See what your options are. That might help.

      Good luck to you.

      Karen

  • At the end of this month, I go to mediation. I forced it. My spouse is unhappy about that. Her attorney is very aggressive and constantly threatening me in writing. We are using a retired judge. My position, going in, is to convince the judge of my position on the assets and spousal support. My spouse, unfortunately for me, controls 100% of the community estate. I have a bottom line of about 75% of what I think is the estate. I am the one seeking spousal support. During the marriage I paid for the vast majority of everything, and then retired. Now the spouse who has a much higher income than mine, and also has separate property assets is extremely upset that I have nothing to add to the community estate, thus she feels that she should not have to pay a property settlement, which in essence will come from her separate property cash. Nor does she want to pay a spousal support. She believes that I am capable of paying for my own needs. We are both retired, have been for years! In California, we are both eligible to remain retired and neither can be forced to return to the work force to pay for support, or earn money to pay for one’s own needs. (A recent appellate in 2017 confirmed that). She is paying for all attorney fees and the cost of mediation. So, how can you tell early on in the mediation process if we are just wasting time?

    • That’s a tough question.

      I’m sure you know that no mediator (even a retired judge) can FORCE you to make an agreement. If you and your spouse can’t come to your own agreement during mediation, the mediation will fail. Then you will end up fighting in court.

      One way to be able to tell whether mediation is likely to work or not is to gage how flexible both sides are. If two people each have their own ideas about what they want and are not willing to compromise, mediation doesn’t have a good chance of succeeding. So whether your mediation will be successful depends primarily on you and your spouse.

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    Pleasant Tuesday Morning. I’m In Dire Need Of Some Advise. Not Sure How Secure This Page But Would Greatly Appreciate Some Feedback From You. Thx In Advance.

  • Just on the 24th of February I found out that my husband had contacted an attorney, cashed out stocks and paid her and written up an agreement for divorce. I found the document by accident on our computer after I realized I had no access to the bank account because of extra security questions. I of course was borderline hysterical for the first two days, exhausted and depressed for the next 2 days, angry for the two days after that and finally involved my mother so she could help me try to distance myself emotionally. My husband cashed out $4,000 of stock and contacted the attorney on the 19th, filed our taxes jointly in the middle of the night on the 20th with the money being deposited into his account, paid the attorney with the stock money he cashed out on Thursday and pretended like nothing was wrong until I found the document on Sunday. he refused to give me any space to even come to terms with the fact I was about to be divorced. I consistently asked him for some space to calm down which he refused to give me, demanding that I talk about this agreement he had written up because he was trying to do me a favor. On the surface it seems generous, but anytime I have brought up that I want to go over it and speak with my own legal counsel he has immediately bristled and accused me of trying to hurt him and his son while he’s trying to do favors for me and my two children. I have asked him for financial documents which he has denied me, he has restricted my access to what has been used as our family checking account to asking him for money and providing receipts for every purchase. he has changed the password and denied me access to our TurboTax account with which we have filed taxes since we got married, and on that note I feel as if he filed those joint tax returns without my consent as he deposited all the money in his account After contacting an attorney for divorce. There is no way I would have filed jointly with him if I had known. I now feel I need to go to an attorney without question. He accuses me of not trusting him without reason well in the same breath denying me access to any of the documents I have requested that could put my mind at ease. Is this a normal tactic? My mother is involved now and she is adamant that I not sign anything. My husband is now refusing to speak with me at all unless he has talked to the attorney he hired which he repeatedly told me was hired for both of us, and that if I hadany questions I could give them to him and he would email them to her and then give me her responses. I feel as if he is trying to manipulate me, in fact I know he is. He keeps telling me that I will not get even a portion of what he has offered me although it seems like that cannot be true.

    • Listen to your mom.

      First of all, no one attorney can represent both parties in the same case. It’s unethical. So your husband’s divorce lawyer is HIS lawyer. You need to find your own divorce lawyer, and you need to do it NOW!

      Normally, I’m not a big fan of immediately “lawyering up” in your divorce. But your husband has already done that. If you don’t want to get run over, you need to do the same. (Sorry! But this is a perfect example of how NOT to start a divorce.)

      Whether your husband’s behavior is “normal” or not is the wrong question to ask. What you need to ask is, “Given my husband’s actions, what do I do now so I can get through this divorce without losing everything?” The answer is to get an attorney. You NEED good solid legal advice. You also need to see your financial documents and you are entitled to see them. If that makes your husband angry, oh well!

      I wish I had something more positive to say. Sorry.

      Karen

  • Hi” my boyfriend is going through the financial settlement in his divorce, we have a joint account, also I have a sole account of my own that I have had for years. His ex is wanting my bank statements because there is some transactions between both accounts,, do I have to provide all my statements for the last 12 months? Or can I just provide the statments where there has been transactions? Many thanks.

  • Greetings! What do you say about attempts of Discovery of hidden assets? My husband served me DOM and after 28 years of marriage claims he doesn’t have enough money to provide Alimony. Worked /retired from Saudi Aramco has NUMEROUS Investments, but only plans on leaving me with Social Security of $612 month and a 22 year old home not Marketable for selling. The home has all original everything – Roof, plumbing, electrical, gutters and 18 Huge Water Oaks.The trees when they fall will take out ALL structures AND husband dropped the HO insurance coverage in 2015. Everything in home requires new replacments or major updating. Leaving me this home he claims is an asset. What to do?????????

    • I’m afraid that answering your question would require me to give you legal advice. I can’t do that online or outside the state of Illinois. You’re going to need to talk to a good divorce lawyer in your area in order to understand your options and what trying to discover hidden assets in your divorce will cost you.

  • I want some unusual things in a divorce settlement. Specifically I am wanting employment in a private firm where we own 10% of the company. How can I get this negotiated?

    • People have written entire books on negotiation strategy. So without knowing a whole lot more about your situation, I couldn’t even begin to responsibly suggest what strategy may or may not work in your particular case.

      What would be best is if you work with a good divorce lawyer in your area (if you aren’t doing that already!). Enlisting the help of a trained mediator could help as well.

      Good luck!

      Karen

  • I found my husband had a meeting with a divorce attorney scheduled. After finding this I sent him and the attorney a fake email saying we be having a party in 3 weeks and the house was up for sale. You will find out when you get here. I found out later that he took that as an agreement to the divorce. He knows I never wanted a divorce. I complettely lost it when I was back at the house Thea was a clear sign I did not want the divorce. We sort of quit actually having an real discussions. He never truly discussed the issue he was having at the time. Even after I found out. NO discussion on either side. After that I tried many times to get him to discuss his issue and drop the case for 6 months. He refused and just immediately got a lawyer. Everyone telling me well he will get a divorce. Family just blantly saying “well you are rejected” We together almost 30 years. It been 6 months. Still want this to stop and reverse. He wants not contact with me unless there is something he needs like something from the house or payment. ( He moved into a single woman’s co-friends house.)

    • I’m so sorry to hear what happened. I can tell from what you wrote that you really don’t want a divorce.

      Unfortunately, if your husband DOES want a divorce, and he files for divorce, you can make it take longer and you can make it cost more, but you can’t stop it. (Sorry.)

      At this point, I know it’s not what you want, but you would be wise to speak with a divorce attorney in your area as well. If he has a lawyer and you don’t, things are not likely to go well for you.

      Best,

      Karen

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