Effective Divorce Negotiating And “Knowing Your Rights”

Negotiating your divorce can be a scary and daunting task for the unskilled and uneducated.  Unlike buying a car or a house, the decisions made in your divorce settlement can have a great impact on your life and some of the decisions made are irreversible.  The first step is getting prepared and educated.  Before you can even come close to sitting foot at the negotiation table, you have to be fully educated on all assets and debts.  There needs to be full and complete disclosure of each asset and debt, after which there needs to be a categorization of the assets to account for liquidity, taxes, and availability to divide.  For example, stock options are typically not able to be divided or transferred until some future date.  Offsetting this type of asset for a more readily available asset like equity in a home can be more advantageous, depending on which side of the table you are sitting.  Having a skilled attorney to uncover all assets accumulated during the marriage is critical.  The next step is exercising leverage and negotiating from a position of strength.  This comes from uncovering the intimate details of a case, including the conduct of the parties, and all the specifics of the parties’ marriage.  Having a close trusting attorney client relationship with open communication is critical to gathering the details required to build a case and negotiate from a position of strength.  Oftentimes knowing the weaknesses of a case is just as important, and potentially even more important, than knowing the strengths.  A client must trust his her or her attorney completely and fully inform her.  A skilled attorney who knows how to utilize the law with the facts of a specific case can help gain an advantage going into negotiations.  Further, timing can be a critical factor in obtaining a desired result in a negotiation.  For example, scheduling a mediation a week or two prior to a hearing ensures that the maximum pressure is imposed on the other side.  Knowing the other side’s weaknesses and being able to exploit that is a successful strategy in negotiations leading up to a hearing.  The key is careful planning and effective attorney client communication.  Once you have arrived at the negotiation table, it is important to know what to expect.  Typically when we talk about negotiations in a divorce setting, we are referring to mediation.  At mediation, a neutral third-party attorney is appointed as the mediator.  That person’s role is to identify disagreements between the parties and to help bridge the gap and reach a final agreement.  A good attorney knows that mediator selection can be just as important as the facts of the case.  A mediation typically begins with everyone in the same room.  The parties then soon separate into caucus and the mediator goes back and forth between rooms.  The mediator typically leans hard on both sides in order to reach an agreement, and the day can be very stressful.  Make sure that you are comfortable, fed, well-rested, and able to make good decisions.  Having an attorney that is willing to say the mediation is over when he or she recognizes the client is tired and at his or her end mentally is just as important as the actual negotiations.  A good attorney commands the flow of the mediation and can take charge.  Once an agreement is actually reached, the final step in securing the deal is memoriazling it appropriately.  A mediated agreement is typically bullet point and short hand.  A formal settlement agreement is very detailed and lengthy.  The devil is always in the details.  Having an attorney that understands the details is critical to making sure the deal you thought you had is properly captured and enforced.