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Divorce: Working Through the Issues

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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.

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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.

To order this book visit the Idiot's Guide web site or call 1-800-253-6476.


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