Divorce: Working Through the Issues
What if you and your spouse just can't agree? What if issues ranging from custody of the children and ownership of the dog to an inability of one spouse to let go promise to complicate the situation for years to come? Can you get a quick divorce anyway? Sometimes you can, with the help of a judge, but it depends on where you live.
In major metropolitan areas, where the court dockets are crowded, it could be months, even as long as a year, before your case can be tried. In smaller communities, it is possible you can get your day in court much sooner.
Bargaining and Compromise
Silver Linings
If you have gotten the short end of the stick in a divorce decision, you will almost always get another chance. If you haven't received what you want in the divorce decision in terms of custody or property, you will usually have the right to appeal. If you have been treated unfairly by the judge, the situation might be rectified. However, depending on how backlogged the appellate court is, it could take months or years to get back in front of a judge.
You Can Do It!
Focus on the problem, not on your feelings. Say you want to live in the family home until your youngest child graduates from college, but your husband wants to sell the house now. The issue is whether you can afford the house and whether your spouse needs the sale proceeds, but your husband's real concern might be that you'll remarry and have someone else move into “his” house. If that issue surfaces, it can be addressed by agreeing that if you remarry, the house would then be sold.
It's difficult to negotiate for yourself, particularly when emotions are involved, as they tend to be in a divorce. For many couples, trying to negotiate is like reliving the worst moments of the marriage. After all, if the two of you got along well enough to work out a divorce, you might not be divorcing in the first place. Does this mean you have to abandon all hope and leave everything to the attorneys? Not necessarily. Here are some tips that might help you reach a settlement without going to court:
Never present your bottom line early in the negotiations. It might sound childish, but it happens to be true. When negotiating, don't present your bottom line first; that could end up being the high figure, and it can drop from there.
Argue issues, not positions. It might sound obvious, but it isn't always. For example, you and your spouse are discussing who will pay for your children's college education. Your spouse says the two girls will go to state schools. You say they'll go to the best school they get into. The two of you are arguing positions, not issues. The issue is the cost of college and how you'll finance it.
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Make rules for your discussion. If you and your spouse are meeting alone, write out a schedule of topics to be covered and stick to it. Agree that neither of you will interrupt the other. If you're meeting with your spouse and with the lawyers (commonly called a four-way meeting), you and your attorney should plan the meeting. You should have an agenda, preferably in writing, and you should know when to talk and when not to talk.
Before one four-way meeting, one husband's lawyer asked him not to talk to his wife. Within three minutes of the meeting's start, the husband was shouting at his wife, and she was yelling right back. The husband's lawyer was doodling, and the wife's lawyer was trying to calm her client. Considering that the combined hourly billing rate of the two lawyers probably exceeded $500 an hour, the husband (and wife, for that matter) were spending their money at a rapid rate.
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Be flexible. That doesn't mean cave in. It means be ready to compromise. Remember the example about the two girls and what college they'd attend? Suppose you don't want to pay anything for college, and your spouse wants you to pay half. What about paying one third? What about paying half only if your income is at a certain level by the time the girls go to college? What about agreeing to pay half but also stipulating that any loans or scholarships the girls receive offset your half?
As long as you stay locked into one position, it will be hard to settle your case. Be open to ideas. You might have to get some from your attorney, from your accountant, or from friends who have been divorced.
Be ready to trade. Say that you really want the gold necklace your husband bought you on your third wedding anniversary, and he really wants the cookware. You want the cookware, too. Decide which one you want more, and, if the values are about equal, make the trade. It sounds obvious, but when emotions are running high, it might not be.
Leave heated issues for last. This is a lawyer's trick. Resolve everything you can and save the heavy issues for last. Maybe you both want custody of your child. If you start off discussing that sore point, you'll get nowhere with any other issues. If you first sort out the house, the car, and the debts, you might make better progress on the last, toughest issue. After all, you've both spent so much time already, it would be a shame if you couldn't work it all out.
Have a judge or neutral third party, like a mediator, help resolve the issues you can't resolve. Maybe you and your spouse have worked out everything except custody. A custody trial will still be cheaper than a trial on all the other issues, too. Don't throw in the towel on your settlement agreement just because you can't resolve everything.
If things get too emotional, step back. Maybe you and your spouse have met with the best intentions, but before you know it, you're back to the old routine that never got you anywhere in your marriage. Break for a few minutes or a few days before trying to hammer out an agreement again.
Don't expect more than you had in the marriage. Some spouses suddenly “forget” when getting divorced that they were married to the man who blew his paycheck every few weeks at the race track. When there's a missed support check, they're shocked. Maybe the two of you decided to put any extra money into your house over the years. Suddenly, your spouse is shocked that there are no savings.
Remember, getting divorced does not turn a frog into a prince. If you negotiate in good faith but lose track of who you are dealing with on the other side of the table, you could be in for disappointment.
Give up if you're getting nowhere. Maybe you've met alone, maybe with lawyers, maybe with a priest or an accountant, and you've agreed on nothing. It might be time to move on to the next step, which could be a trial in front of a judge. Some spouses need to be told by a judge the way it's going to be.
In one case, the father would not voluntarily relinquish custody of the children (teenagers who wanted to live with their mother), no matter what. If a judge had told him he had to let them go, however, he would have complied.
As it turned out, the case did not go to the court. The lawyers finally worked out an agreement without using the word “custody.” The children stayed with their mother during the week and with their father most weekends. The father could live with this arrangement because technically both parties still had custody.
Impediments to Settlement
Silver Linings
As Freud once said, “Sometimes, a cigar is just a cigar.” If your spouse isn't getting back to you about the agreement, saying he's too busy right now to look at it, maybe he is. One couple was on the verge of settling their case when tax season began. The husband was an accountant who relied heavily on returns for his income. He said he was just too busy to review the agreement; his wife was sure he was delaying. The truth was that the husband was too busy working to focus on the agreement, and negotiations had to wait until early May.
Once you both feel you know what is and is not in the marital pot, the biggest impediment to settlement usually is emotion.
Maybe you're not ready to see the marriage end, so just when it seems like you're about to make a deal, you find a problem with the agreement. If the real problem is that you do not want the marriage to end (whether it's because you still want to be married or you don't want to give her the satisfaction of being divorced), then you should tell your lawyer to stop negotiating for a while. You need time to think things through, and there is no sense incurring legal fees by having lawyers draft and redraft the agreement when you know you're never going to sign it.
Maybe you're ready to be divorced—maybe it was your idea—but you're convinced your spouse would not agree to a deal unless he was hiding something. Despite all the financial disclosure, you're just not sure that you really know what assets your spouse has.
If this is the problem, tell your lawyer you want a representation in the agreement that your spouse has fully disclosed assets and debt, and if it later turns out your spouse lied, you have the right to reopen the deal.
Some people reject settlements because they don't understand the law, and they think they'll do better in court. For many spouses living in states where no-fault divorce is available, it is difficult to understand how a spouse can just walk out of the marriage without paying some kind of penalty. The “penalty” sought is usually an extra share of the marital assets. The law might provide, however, that no matter the reason for the divorce, assets are to be divided on a nearly 50/50 basis. An individual who refuses to accept this will never be able to settle on a 50/50 basis and might have to go through the expense of a trial just to hear a judge say the exact same thing.
Some people reject settlements because they feel the deal has been “shoved down their throats.” Perhaps a lawyer was too pushy, and although the client didn't complain during the negotiations, she balks when it comes time to signing. Whatever the problem, discuss it with your lawyer. If yours is a case that needs to be decided by a judge because you just can't work out or sign a settlement agreement, stop the settlement process now before any more money is spent.
No Deal!
At what point is it worth throwing in the towel during settlement negotiations? Here are some criteria to consider:
You think your spouse is hiding assets. You can have an expert locate them and testify to their existence in court. Remember, if you're sure that he's hiding assets but you can't prove it, a judge probably is not going to accept your position. Always consult with an attorney.
The deal is too vague. For example, the proposal is that “visitation will be agreed upon later” or that “bank accounts will be divided according to the parties' wishes.” Any proposal that's merely an agreement to agree is just putting off conflict, not resolving it. Reject it in favor of a specific proposal.
The deal is unfair. Although that might seem obvious, it's not always easy to know when a deal is unfair. Here are some examples:
You and your spouse ran up the credit card bills together, buying things for the family, but only one of you is going to be responsible for all the debt.
You filed “aggressive” joint tax returns, but now only one of you is expected to pay the debt.
You own two apartments, and your spouse wants both of them.
The test lawyers use for fairness is the law and the case law. You can use the “objective test”: If you were not involved in this case, would you think the proposal was fair?
It's a Deal: Accepting the Package and Moving On
If the problem holding up the deal is your feeling that your spouse is hiding assets, but you can't prove it, you probably should take the deal.
If you're running out of money to pay a lawyer and the deal is reasonably fair, you probably should take it.
If neither one of you is completely happy—in fact, you're a little unhappy with the deal—you should probably take it. It's been said many times that the best deal is the one where both sides leave the table a little dissatisfied.
Excerpted from The Complete Idiot's Guide to Surviving Divorce © 2002 by BookEnds, LLC. All rights reserved including the right of reproduction in whole or in part in any form. Used by arrangement with Alpha Books, a member of Penguin Group (USA) Inc.
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