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Divorce Resources for Women

Achieving Your Best Outcome

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Now that you have worked through the issues of property, alimony, custody, and child support, the last step you need to take to finish this process is to actually finalize your divorce. Ironically, the absolute divorce is generally the easiest and simplest element of a divorce—it is, basically, the official and public statement that the two of you no longer wish to be married. From a legal perspective, it is important that you take this final step; your marital status matters in the world (legally, financially, etc.), and the only way to be “officially” divorced is to sign the papers. We do occasionally see clients who, for various and complicated reasons, have great difficulty finishing the process, and years later are still unable to find closure. We urge you: finalize the divorce, sign the papers, and get on with your life. The divorce itself is really just a formality—do it, and move on.

It is necessary, at this point, to revisit the Spectrum of Control, which we first mentioned back in our article “An Overview of Divorce.” Now that you have thought through the multitude of issues surrounding the dissolution of your marriage, you need to make a decision regarding the fundamental emotional tenor of your divorce. Basically, all divorcing couples exercise a measure of control over their situation that ranges somewhere between kitchen-table negotiations, with no outside involvement, and a court-ordered resolution that is determined and mandated by a judge. Very few of our clients go to the extreme poles; most cases get settled somewhere in the middle, by one of three means—collaboration, mediation, or lawyer-led settlement. You need to decide how much control you want to have over this major life change. As you are thinking about where you fall along the Spectrum of Control, keep in mind the following points:

First, the more you know, the better off you are and the more likely it is that you will achieve a better divorce outcome. Knowledge is power–that’s the long and short of it.

Second, the more time you spend planning for your future, making your own decisions and mapping out the course that will best work for you, the more likely it will be that the results of the separation and divorce will feel satisfying to you. If you take responsibility for your life now, you will feel less helpless during separation and divorce, even in the midst of strong negative feelings. If you totally “hand off” your divorce to someone else, either your spouse or your own attorney, without directly participating in the process, it is more likely you’ll feel like you don’t know what is going on. In many senses, that will probably be true. Losing control of your life in this way will leave you worse off than you can possibly imagine. In all likelihood, you will be worse off both emotionally and financially than you will be if you participate actively in resolving the issues arising from your separation.

Third, you need to try to view the resolution of matrimonial legal issues as a business transaction. Dividing property, deciding on residential arrangements for children, arranging for payments of child support and alimony can all be see as business arrangements. You may have lots of feelings over one or more of these issues, but don’t let your feelings get tangled up with your business sense. Remember, then, to keep the settlement of your legal issues unencumbered, to the fullest extent possible, from all the petty emotional struggles that will only drag out the process and drag you down as well. These three basic principles will take you a long way in mapping out your own divorce with the least possible pain and expense.

Finally, what are you going to learn from this process? Admittedly, the unraveling of a marriage is not generally seen as a positive event, but as we keep pointing out, if you can see it as a challenge to grow and stretch yourself, you may find that when all is said and done, you will be a stronger, better person. Major life changes always present opportunities for personal growth—perhaps you can learn to be a better communicator, a stronger negotiator, or a more patient parent. There are people in the world who spend their lives learning and changing and growing, and there are others who stagnate. A divorce presents a fairly unique opportunity for radical growth at a stage in life when it’s easy to stagnate—try to take advantage of the potential for growth.

Settlement: The Most Attractive Option

The vast majority of divorce cases will be settled, meaning that the parties will reach some sort of agreement without litigation, or the intervention of a judge. Settlement is preferable in almost every case for any number of reasons. In almost all cases, resolution through settlement is less costly, less prolonged and less emotionally draining than litigation. The emotional strain of court proceedings is felt, moreover, by each spouse (regardless of who initiated the litigation) and also by the children, by other family members, and by friends and work associates who interact with the litigating spouses. Divorce—even without litigation—is already a major emotional stress on any family. The change in family living arrangements alone causes temporary adjustment problems for the most sturdy of individuals. Added to such changes is all the uncertainty involved in reallocating family financial resources that once went to one intact family unit and must now stretch to meet the needs of two households.

It is, then, little wonder that many families feel crushed by the extra emotional wear and tear of having to deal with court papers, including the burdensome discovery process of sharing written documents and answering written or oral questions, the selection and interviews of potential witnesses, and all the anxiety of formal court proceedings. Litigation is enough of a strain when it doesn’t feel like the whole web of one’s life is falling apart all at once. When one’s concept of who one is and what the future will hold is being altered by separation and divorce, sometimes radically altered, then litigation is almost more than some people can bear.

Another disadvantage to litigation is that the judge, and not either of the contestants, dictates the result. Once your case is litigated, you lose control over the process even when you think you (and your attorney) are influencing the judge. The outcome of litigation is, moreover, never a real victory for either side. Each side loses from having had to go through adversary proceedings. It’s not only parents who suffer from courtroom proceedings. The children will be traumatized as well, whether or not they ever set foot in the courthouse.

Just as important as minimizing emotional and financial devastation at a time of major personal crisis, settlement can be custom-tailored to a family’s interests and needs in a way that may not occur in the bureaucratic judicial system. That system cannot know your personal priorities and your family’s special traditions the same way you and your spouse know those priorities and traditions. The judicial system is, on the whole, conservative in fashioning remedies. The system will not provide the kind of creative solutions that you and your spouse might create on your own, provided you both have the stamina necessary for negotiation and the capacity to be flexible. For all these reasons, you want to go to court only as a last resort, when nothing else looks like it will work.

Regardless of whether spouses can settle or they are forced to litigate, the independent nature of custody, support and property issues in some states can drag out the ultimate resolution of all issues arising from separation. For example, in North Carolina, custody can and might be resolved—by private agreement or in court—long before any other topics have been dealt with, or, property might be divided long before there are any agreements with respect to custody or support. You will certainly want to consider, during the negotiation process, whether it makes sense to try to deal with all issues simultaneously, rather than one at a time. In terms of peace of mind, closure and expense, it usually makes the most sense to settle everything at once and as expeditiously as possible under your individual circumstances.

It is, of course, also often tactically advantageous to settle as many issues as possible all at once. A prime advantage of such a settlement technique is that either husband or wife has the opportunity to “trade” or compromise on items in one subject area (such as custody) for something the other spouse wants more in another area (such as property). If, by comparison, all five topics are dealt with at separate times, as North Carolina law permits, “trading” across subject areas is going to be much more limited.

One piece of advice that helps many of our clients is the idea of focusing most of your attention on the single issue that is most important to you (rather than allowing yourself to get sidetracked on issues that have only passing or minor emotional significance), and then to be prepared to make concessions on the matter that counts most to your spouse. If, however, you can see, ahead of time, that your most important issue is also your spouse’s most important issue, and the two of you are in opposite camps over that issue, negotiating may be a waste of time. But on the other hand, if you have figured out what your spouse most wants, and you can find a way to make that happen, then you may have some leverage in getting what you most want.

Focusing on your single most important priority and your spouse’s highest priority are extremely important tactics that are all too often overlooked in negotiations. Let’s say you have two teenagers, both of whom hope and plan to go to college. You and your spouse quickly drew up and signed a separation agreement and property settlement addressing only property and custody. Both children will reside with you. All the marital property, including the IRAs in your spouses’s name, has been equally divided between you and your partner in the written agreement.

You entered into the written agreement, drafted without a lawyer, at a time that both of you foresaw that you would have to ask a judge to decide the issue of child support because the two of you had sharp disagreements over that. You drafted the agreement yourselves, covering only custody and property, because you and your spouse perceived both of those areas to be simple enough to do on your own. There was simply no contest over custody. You yourself felt especially secure about the property issues, too, because you have always managed the family finances. You were certain that you were not overlooking any marital assets when you tallied everything up. You also believed that all assets had been fairly valued and divided. You and your spouse researched sample language for your written agreement in several legal texts; both of you understood your contract would be a binding agreement, and you are both confident that there are no major omissions or mistakes in the drafting you did. Thus, you are not really concerned about the future implementation of the custody and property agreement that the two of you have finalized.

You left child support out of your settlement discussions and the written agreement, however, based on your perception of your children’s financial needs and based on a concern that you might not have been able to draft an “air-tight” document concerning support. You believed the children would be entitled to receive monthly support above the Child Support Guidelines, which your spouse would not agree to. You were both prepared, in the heat of angry conversations, to litigate the issue. You and your spouse never discussed the children’s future college expenses, as the issue of child support was something the two of you did not discuss in any detail once it became clear that you were not going to be able to agree.

Now you have realized that getting your partner to agree to contribute to the children’s college education is much more important to you than having half of their IRAs, and contribution to college education is also now far more important to you than asking a judge to award monthly child support above the Guideline amount, which the judge might refuse to do anyway. You have also now been informed, correctly, that a North Carolina judge lacks the authority to order a parent to pay for college expenses unless the judge is merely enforcing a prior contract entered into between two married people. You did not know that earlier, just as you did not recognize earlier that college was a big deal for you.

At this point, you will be able to get your spouse to agree to contribute to college costs, if at all, only by reopening the negotiations that had previously resulted in a written agreement. Your spouse may be interested enough in retaining all of their IRAs or in getting some other item of property, that they would consent to sign a new agreement that obligates contributions toward college. Or, it could be that your spouse has now gotten used to the idea that their IRAs are divided with you, according to what both of you deemed to be fair, as well as the idea of just letting a judge decide about monthly child support. In other words, your spouse may no longer be interested in further negotiations with you.

The opportunity you once had for a more comprehensive settlement may be lost. Worse, you may be left with a bargain not as good as the one you might have struck with your spouse initially. After enduring the stress (and possible expense, if lawyers were involved) of strenuous negotiations, parties may understandably be very reluctant to return to the bargaining table.

Therefore, you want to know—from the start—exactly where you want to go with the negotiations. You also want to become more informed about some of the skills needed for successful negotiations. You can pick up tips about negotiating from a number of excellent books. A good place to start is with Getting to Yes: Negotiating Agreements Without Giving In by Fisher and Ury. The chapters in that book summarize some important points to keep in mind at all times: Don’t bargain over positions. Separate the people from the problem. Focus on interests, not positions. Invent options for mutual gain. Insist on using objective criteria. Know what to do if the other side is more powerful, or won’t play, or is using dirty tricks.

Negotiating in the face of the breakup of a marriage is a daunting task. The conflict with your spouse can get destructive. Negotiations may get seriously out of control. One party may commit too early to something that he or she can’t or won’t do. Separation distress can be greatly augmented if settlement discussions aren’t mutual efforts to work out practical solutions that make sense for both partners and the children. Most couples cannot go it alone (remember the kitchen-table end of the Spectrum of Control?), but need to rely on lawyers or other professionals to smooth the way.

Before we discuss the various kinds of third-party help available to assist with negotiations, we’d like to give a few tidbits of advice to those of you who are planning to draw up an agreement at the kitchen table: It is, of course, extremely difficult for each spouse not to become embroiled in the issues that led to marital dissolution, whether outside help is enlisted for the negotiations or not. Your very best preparation for negotiations is to get your emotions under control and to inform yourself, as fully as possible, about: (1) what you most need and want, (2) what your spouse most wants, (3) what the law says each of you is entitled to, and (4) what your family income and expenses are now and what they will be post-separation. Don’t try to negotiate without getting a handle on this information, whether you are negotiating on your own behalf or you are using someone to negotiate for you. Don’t try to continue negotiations at a juncture at which one, or both, of you has lost objectivity.

Here are some tactics and attitudes to adopt, if you do decide to try one-on-one negotiations with your spouse. Negotiate in a neutral place where you feel safe, at a preplanned time. Break off negotiations immediately if things heat up unconstructively. A good starting point for settlement discussions is for you and your spouse to recognize, and enumerate, all the areas on which you agree.

Then find out more about all the things about which you can’t agree. Try to hear what your spouse has to say, without arguing the points. Try to get your spouse to hear what you have to say, without raising your voice. Be careful not to fence yourself in by indicating some dollar amount that you are offering, or that you are willing to accept. If you offer a dollar amount that you later realize was too high, your spouse’s expectations have been set at the higher amount. If you said you’d take an amount that you subsequently discover is too little to meet your expenses, you will have a devil of a time convincing your spouse to increase the amount. Think about the items of property you are receiving when you and your spouse make guesses about their value—the lower the values on the items you will be receiving, and the higher the value of your spouse’s items, the more items you will get in a 50 percent division.

Address all the issues, not just some of the issues; look at the facts, not what you or your spouse imagine to be the facts; see if the two of you can create solutions rather than new areas for conflict. At impasses, talk together about what the likely outcome would be if you have to go to court. In order to make these predictions, you both need to know the basic materials that can be found on this website. You also need to look for points on which to leverage your requests. Such points include secrets that your spouse doesn’t want to make public, or your spouse’s sense of duty or your spouse’s pride in being known to do the right thing.

Remember, statistics predict that you will settle the issues that may seem to be impossible to settle. But if you can’t settle under your own power, don’t wear yourself out trying. Just move on to the next step—get help from an attorney or another professional. If that person picks up the negotiations, the discussions may go on for some time. There may be telephone calls, letters, demands/counteroffers, proposed draft agreements, face-to-face meetings, and delays. Still, you will most likely settle eventually.

 

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