Divorce--Negotiating Agreement: Ten Steps

The best predictor of a good divorce outcome is the degree of client control over the negotiation--everything works much better if you have it. This doesn't mean you should not get help and advice from an attorney if you want it; it means you are better off if you plan to do most or all of the negotiating yourself.

Studies indicate that clients feel their attorneys don't actually give them much help or guidance anyway. In a 1976 Connecticut study, nearly half of those interviewed reported no more than three contacts with their attorney, including phone calls, while 60% said they had worked out all issues without attorney help.

A New Jersey study in 1984 considered only cases with children where both spouses had attorneys. Fewer than 20% felt their lawyers had played a major role in settlement negotiations.

So, you see, you are likely to end up dealing with the negotiation anyway and there is strong evidence that you are far better off if you do. You get a higher degree of compliance with terms of agreement, a much lower chance for future courtroom conflict, co-parenting is smoother, support payments are more likely to be made in full and on time, and you get on with your life more quickly.

Don't expect negotiating with a spouse to be easy. There are lots of built-in difficulties--so many that you may want professional help from a good mediator. But, okay, so there are problems--that's nothing new in the world of divorce. Let's look at exactly what you can do about it. Here are ten steps you can take to make your negotiations work:

1. Be businesslike:

  • Keep business and personal matters separate. You can talk about personal matters any time, but never discuss business without an appointment and an agenda. This is so you can both be prepared and composed.


  • Act businesslike: be on time and dress for business. Don't socialize and don't drink; it impairs your judgment.


  • Be polite and insist on reasonable manners in return. If things start to sneak into the personal or become unbusinesslike, say you're going to stop if the meeting doesn't get back on track. Ask to set another date. If matters don't improve, don't argue, don't get mad, just get up and go.

2. Meet on neutral ground: Find a neutral place to meet, not the home or office of either spouse where there could be too many reminders, memories, personal triggers. Or the visiting spouse could feel at some disadvantage and the home spouse can't get up and go if things get out of hand. Try a restaurant, the park, borrow a meeting space or rent one if necessary.

3. Be prepared: Get control of the facts of your own divorce; understand how the laws of your state apply to the facts; find out the probable outcomes under the law; clarify your goals. You can also prepare by trying to understand your respective emotions and past patterns. Just the fact that you are trying to do this will help make things a little better.

4. Balance the negotiating power:

  • If you feel insecure, become informed, be well prepared, use an agenda, get expert advice and guidance. There's never any need to respond on the spot: state your ideas, listen to your spouse, then think about it until the next meeting. Don't meet if you are not calm; if the meeting doesn't stay businesslike, don't continue. If this happens often, consider using a professional mediator.


  • If you are the stronger spouse, help build your spouse's confidence so he or she can negotiate competently and make sound decisions. And listen, listen, listen.

5. Build agreement:

  • Start with the facts: You should by now have gathered and exchanged all information. If not, complete the information gathering (see Step 6 of my article "Divorce--Overcoming Obstacles to Agreement"), then try to agree on what the facts are. Write down the facts you agree on and list exactly what facts you do not agree on. Note any competing versions then do research to resolve the difference by research and exchanging records. Compromise. If you can't prove some fact to each other, you may have a hard time proving it in court.


  • Make a list of the issues and decisions you can agree on. Write them down. This is how you build a foundation for agreement and begin to clarify the major issues between you.

    • Next, write down the things you don't agree on. Always keep trying to refine your differences--to make them more and more clear and precise. Try to break differences down into digestible, bite-sized pieces.

6. Consider the needs and interests of both spouses: Avoid taking a position. Consider your needs, interests and concerns alongside the facts of your situation. Work together on brainstorming and problem-solving; look for ways to satisfy needs and interests of both spouses and try to balance the sacrifices.

7. State issues in a constructive way: "Reframing" is when you restate things in a more neutral way, to encourage communication and understanding.

For example: One spouse says, "I have to keep the house." Reframe: "What I would like most is to keep the house, that's my first priority, because . . . What the house means to me is . . ."

8. Get legal advice: Typically, legal questions come up as you negotiate. Get advice; find out if the laws of your state provide a clear, predictable outcome on your particular issue. Don't hesitate to get more than one opinion.

9. Be patient and persistent: Don't rush, don't be in a hurry. Divorces take time and negotiation takes time.

Whenever someone hears a new idea, it takes time to percolate. It takes time for people to change their minds. It may take time to shift your mutual orientation from combative to competitive to cooperative. So don't just do something; stand there! A slow, gradual approach takes pressure off and allows emotions to cool.

10. Get help: Negotiating with your spouse may not be easy; you're dealing with old habits, raw wounds, entrenched personality patterns--all the obstacles to agreement all at once. A third person can really help keep things in focus.

Mediators are professionals who are specially trained to help you negotiate; they are expert at helping couples get unblocked and into an agreement. Mediation is very effective and it usually goes quickly.

Before you begin to negotiate, get a copy of Divorce Solutions: How to Make Any Divorce Better (the book from which this article was excerpted) for you and your spouse. Then, if possible, discuss parts of it together.

There are many good books about negotiation, but one of the best and easiest to read is the little (150-page) Penguin paperback by Fisher and Ury, Getting to Yes: Negotiating Agreement Without Giving In, available at www.divorcehelp.com, along with other recommended books and software.

Copyright 2005 Ed Sherman

Ed Sherman is a family law attorney, divorce expert, and founder of Nolo Press. He started the self-help law movement in 1971 when he published the first edition of How to Do Your Own Divorce, and founded the paralegal industry in 1973. With more than a million books sold, Ed has saved the public billions of dollars in legal fees while making divorce go more smoothly and easily for millions of readers. You can order his books from http://www.nolodivorce.com or by calling (800) 464-5502.

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