According to the dictionary, to "negotiate" means, "to arrange for or bring about through conference, discussion, and compromise." It also means " to find a way over or through (an obstacle or difficult path)". Both of these are true of divorce negotiation.
In divorce negotiation you need to do 3 things:
- Discuss your differences with your spouse;
- Compromise on what you want; and
- Find a way to get around the obstacles standing in the way of reaching an agreement.
While that may sound easy enough, anyone who has tried to negotiate their own divorce can tell you - It's not!
Thankfully, there are many ways to negotiate a divorce settlement. Here are some of the most common techniques you can use if you'd rather settle your divorce than go through a full-blown trial.
Direct Divorce Negotiation
The quickest, most efficient, and least expensive way to settle your case is direct divorce negotiation. That means that you talk directly with your spouse and settle your issues yourself.
This form of negotiation often results in what is known as a "kitchen table divorce." (i.e. You and your spouse sat down at the kitchen table and figured out the terms of your divorce yourselves.)
Direct negotiation has a lot of benefits. It's inexpensive. It can be reasonably quick. And it keeps lawyers out of the picture.
But direct negotiation also has it's downsides.
First, negotiating directly with your spouse can result in a disastrous divorce agreement - especially if you don't know what you're doing! You can literally give away the farm without ever realizing that you've done it. Also, if there's a power imbalance between you and your spouse, you can also get bullied into making a bad agreement.
Perhaps the biggest downside of direct negotiation, however, is that - for most people - it just won't work. That's because "conversations" quickly turn into arguments. Arguments escalate into screaming matches. And screaming matches turn into stalemates. Then nothing gets accomplished.
In other words, you and your spouse don't negotiate. You fight.
If direct negotiation isn't for you, you're not alone. Most divorcing couples have trouble engaging in a productive conversation about what they each will or won't get in their divorce - which totally makes sense. After all, if you and your spouse were able to talk about your differences and compromise on what you wanted, you probably wouldn't be getting a divorce.
Divorce Negotiation Through Mediation
Another way to negotiate your divorce is through mediation. In mediation, a neutral third party (a mediator) helps facilitate the negotiations between you and your spouse. The mediator helps you brainstorm your options, discuss your needs, and reach a compromise that both you and your spouse can live with.
Divorce mediation was traditionally done without divorce lawyers being present in the room. However, there are now many different kinds of divorce mediation. One of those is lawyer-assisted mediation. In that type of mediation, your lawyer IS present with you during the mediation session.
Like direct negotiation, divorce mediation is a cost-effective and reasonably efficient way to negotiate a divorce settlement. However, it, too has its downsides.
The biggest downside is that, in order to work, both you AND your spouse must voluntarily participate in mediation. You must both fully disclose your income, assets, expenses and liabilities. If anyone is hiding assets or refuses to produce information, mediation won't work.
Finally, if there is a history of domestic violence in your marriage, mediating your divorce is not advisable. That's especially true if you and your abusive spouse are still living together while you're mediating your divorce.
If you and your spouse can't negotiate directly with each other, even with a mediator's help, then you need to level up your negotiation approach. That means involving your attorneys.
Attorney negotiation can happen in many different ways.
Your attorney can negotiate with your spouse’s attorney in person, over the telephone, or in writing. You and your attorney can meet with your spouse and his/her attorney in a four-way settlement conference. Or all of you can meet in court at a pretrial conference with the judge or a hearing officer.
If you meet with a judge or hearing officer, s/he may give recommendations to you about how you should settle your case. Once you know what those recommendations are (and thus know what the judge is likely to rule if you actually tried the case), it may become easier for you and your spouse to settle the case.
Timing of Negotiation
In general, you can negotiate a settlement at any time during the divorce process.
It's not uncommon for divorce cases to be settled in the hallway right before, or even during, a trial. However, if you want to settle your case BEFORE you pay a fortune for your lawyer to prepare for trial, it helps to settle your case earlier.
The earlier you settle, the less money you pay your lawyer to fight.
On the other hand, sometimes you need to fight - at least for a while - in order to reach a reasonable settlement.
For example, if your spouse is hiding assets, you may end up having to litigate your divorce in order to use the court's discovery process to find those hidden assets. If your spouse is making unreasonable settlement demands, you may have to fight in court for a while before your spouse comes to his/her senses.
The bottom line is that while negotiation can happen any time, when it actually does happen in your divorce depends on the facts and circumstances involved in your case.