People spend thousands of dollars negotiating and litigating their divorces. But the truth is you can settle most divorces in a few hours if both people are willing to negotiate a settlement. If you decide to try to negotiate your own separation agreement, this chapter will provide you with some tips on how to do it.

You Need to Know Your BATNA

We have discussed how the judge determines such things as custody, visitation, alimony, child support, and alimony in previous chapters. When you have agreed to settle, knowing your BATNA will help you to know what a fair and reasonable settlement of these issues is. BATNA stands for “best alternative to a negotiated agreement.” It refers to what would happen if you end up walking away from the negotiations. In the case of divorce, it is what the judge will do if you try your case. Knowing this will keep you at the settlement table if you are making progress toward your objectives and it will tell you when to walk away if you are not.

You need to know what you want in a business negotiation. In such situations, the negotiator always goes in with a written list of goals and objectives. Further, these objectives are given a best-case, worst-case, and middle-case scenario. Then, they are numbered in order of priorities from the highest to the lowest. You would do well to follow this strategy.

It has been shown that people who enter negotiations with high expectations tend to end up with a better result than those who have lower expectations. So don’t be afraid to ask for the sun and the moon in your best-case scenarios. It can be your starting position.

At the same time, you also have to be flexible to reach a settlement. Being unyielding or acting like a bully rarely works in negotiations. First of all, we tend to be more giving in negotiations when we are treated nicely by the other person. When people are rude or controlling, we dig in our heels and become defensive.

It is possible to be an aggressive negotiator and polite at the same time. You just need to be clear and firm in stating your positions. Studies have shown that polite-but-firm negotiators are more successful in their settlements than negotiators who try to intimidate the other party.

Avoid ultimatums and take-it-or-leave-it declarations. These can shut down negotiations.

You can reframe threats in a constructive way. For example, rather than saying, “If we can’t settle, we’ll have to go to court and pay tons of money to lawyers,” you might instead say, “If we are able to settle, we’ll save tons of money on lawyers.”

Time and Place

When negotiating a separation agreement, the sooner you start the better. Schedule a regular time with your spouse when there will be no distractions. Turn off your cell phones and television. Plan for a couple of hours for each negotiation session. It takes a lot of concentration and energy. Set a time limit and stick to it. Don’t let the negotiations keep going without any real progress.

Pick a time when the children are asleep or at school or on a playdate. Keep the children out of any disputes between you and your spouse. This is a time they will need all the love and attention you can give them. They need to know that you will always be their parent no matter what happens.

Pick a neutral place like the kitchen table where both of you can feel comfortable. Plan an agenda using the settlement negotiation checklist provided earlier. Agree on what you will cover ahead of time. For instance, you might state, “This week we will discuss custody, and next week time-sharing schedules.”

Don’t be afraid to reschedule as necessary. If one of you gets angry or you both get bogged down, or even if you are losing an argument, you can end the negotiation early and try again in the next session. However, try to avoid leaving the negotiation open, even if the only agreement you can reach is when the next meeting will be.

You must take the timing of negotiations into consideration. If one spouse wants to stay married, he may not be capable of negotiating a separation agreement with you until sufficient time has passed for him to accept the idea of a divorce and heal emotionally. Unfortunately, this is often accompanied by the other spouse’s impatience to negotiate a settlement agreement.

Information Gathering

You have filled out your financial forms and prepared your settlement notebook in the previous chapters. You have thought about what you want and your priorities. These preparations will keep you calm and focused in your negotiations. With all these powerful weapons at your disposal, you will probably control the negotiations.

But you may not have access to the complete financial picture of your marriage. If this is the case, you will need to obtain information from your spouse, like her income, retirement funds, investments, and so forth.

You also need to know what your spouse wants. In fact, to make sure you are not shooting too low in what you are asking for, you can request that your spouse makes the first offer. Of course, if your spouse does not know what she wants, and many do not, then you will need to ask questions to get her to decide or you will need to state what you want first.

In order to reach a settlement, you will have to make some compromises. Be flexible. You usually can’t get everything you want. But you can get your high-priority items. The best way to find out what your spouse wants is to ask questions.

The Value of Questions

Many people think they know what their spouses want in a settlement. But this makes them skip a step. They are trying to practice mind reading. But all you have to do is ask. Sometimes the answers are not what you think at all.

Demands, confrontations, and arguments do not settle cases. Questions are a nonthreatening way of obtaining information.

We have already discussed interest-based bargaining involving using the question “Why?” to pierce through a person’s position and get to the interest behind it.

Other powerful questions include:

• “What would that look like to you?”
• “If you got your wish on this item, what would it be?”
• “How would you feel if we solve this problem like this?
• “Is that the best you can do?”
• “Do you have any room to negotiate?”
• “Do you see any other options?”

How to Answer Questions

There is no harm in answering questions truthfully. This is a part of any successful negotiation. Try not to be evasive in your answers. A lot of people feel uncomfortable saying what they want or talking about money. But you are going to have to take your thoughts out of your head and put them into your mouth.

Start with the Easy Items

Discuss the easy items first. Find as many things as you can that you agree on. Then build on those agreements. If you can find nothing else, agree that your marriage is in trouble or that you have cute children.

Don’t Push Buttons

Even couples that have only been married a short time know what buttons to push to make their spouse crazy. This is not the time to push those buttons. Negotiation is best done in a cool and calm state of mind.

And don’t let your buttons get pushed. Try to control your emotions. Stick to your agenda and keep your focus on the checklist. Do not get sidetracked by arguments. Your objective is not to get revenge or prove that you are the better spouse. Your objective is to get a fair and reasonable separation agreement.

In negotiation strategy, it is fair to use histrionics, emotions, and drama as tactics, just as long as you’re acting and don’t really lose control. For example, if your spouse has engaged in marital misconduct and feels guilty about it, you are free to use that guilt to obtain an advantage in negotiations.

If you are the one faced with histrionics, try not to get caught up in the emotional reactions. Stick to the finances or issue at hand. Imagine you are negotiating a business deal.

Process Is Just as Important as Substance

Let’s consider this situation: Ned had seen a crystal decanter with green glass inlays at an antique shop that he liked.  He looked at the price tag. It was $180.

Ned decided he would come back next week and buy the decanter.

Ned took off work Monday morning and stopped by the bank to withdraw $200 in cash.

He went to the antique store but was disappointed to find that the decanter was not on the shelf where it had been. He asked the man sitting behind the counter in the center of the store if the decanter with the green inlay had been sold.

“No,” said the salesperson. “I moved it to a cabinet in the back of the store.” He directed Ned to it with a glance.

Ned was delighted to find the decanter sitting there. He lifted it in his hands. It felt heavy and cool to his touch. He brought it to the counter and asked the man if the price was negotiable for cash, expecting him to say no.

“Hold on,” said the employee. “I’ll call the owner.”

He dialed the phone on his desk. “Someone wants to buy the green inlay decanter for all cash. He wants to know if you will sell it for less. Uh huh. Uh huh. Got it.”

The man hung up. “She says $150 is the lowest she can go.”

“I’ll take it!” Ned exclaimed.

He left the shop humming to himself. Not only had he found the perfect decanter but he had been given a great deal and still had $50 in cash in his wallet.

Now imagine that the price was originally marked $150 and no negotiation took place. The result would be the same with Ned, but he would have been far less satisfied with his purchase. People need process—the sense they are successful in getting their spouses to give up something they want—in negotiations as much, or sometimes more, than they need results. So, be aware of the need for process and give it proper respect in your negotiations. Don’t be in such a hurry to get to results.

In fact, if everything is going your way in the negotiations and you are winning on every point, you might want to slow down. It is a sign that your spouse is just caving in to your demands. This is a spouse that will have buyer’s remorse and not sign the final agreement once negotiations are completed. You need to take your time and make sure the agreement is something that both sides can agree to.

Watch for Verbal Clues

Listen carefully to the answers your spouse gives to your questions during the negotiation process. This will allow you to gather the information you need to complete the blanks in your financial information. You will find out what your spouse really wants in a settlement. And sometimes additional information is leaked in the answers. Verbal clues may be telegraphed unconsciously.

For example, “$3,000 a month in support is about the most I can afford” does not mean it is the most she can afford. It means she can afford more.

A professional negotiator will tell you when he has reached his worst-case scenario and is prepared to walk away by saying that this is his “best and final offer.” Until then, you can keep bargaining.

Make your offers in small and decreasing increments. Your objective is to pay your husband $150,000 or less for his share of the house. Your current offer is $100,000. If your next offer is $125,000, you show you have lots of room to move. But if your next offer is $105,000 and the one after that is $107,000, it sends a message that you are getting close to your limit.

Successful negotiation is a patient and gradual process.

Different Negotiating Techniques

Knowing different negotiating techniques will allow you to try them out for effectiveness or recognize them when they are tried on you.

Here’s an example: Terry was getting frustrated in negotiating the renewal of his lease. He had been to his landlord’s office several times in the past month and had made no progress in the negotiations. So, he was trying again.

“You are using brick wall negotiation tactics,” Terry accused his landlord.

“What are those?” the landlord came back.

“Every time I ask you for a concession, you say no. It’s like hitting my head against a brick wall. Bang, bang, bang.”

“And you are using water torture negotiation,” said the landlord.

“What is that?” asked Terry.

“You keep asking for more concessions. It’s like water torture. Drip, drip, drip.”

What’s happening here? Both sides are using the technique of repetition. Repetition of a request will sometimes work as a negotiating technique. The best example of this is when your children ask for something over and over again no matter how many times you say no. Finally you just give in. This can work for you, too, in negotiating your separation agreement.

Avoid Vague Statements in Your Agreement

Some people don’t want to be pinned down in negotiations. If your spouse refuses to be pinned down, it may make it impossible to negotiate an agreement. But you should try to be as precise and detailed as you can in the agreement. The whole idea is to avoid disputes later.

For example, you can agree that time-sharing will be “reasonable,” or “liberal,” or “to be agreed between the parties,” but this may lead to disputes over who gets which weekend or holiday. Now is the time to pin it down with a detailed schedule.

For the spouse who does not like to be pinned down, you can add a clause that says the parties will be flexible with one another when work requires a change in the schedule.

Best to Have Your Lawyer to Draft the Formal Agreement

If you have taken good notes in the negotiations, you should be able to turn them into a “memorandum of understanding” or a “deal memo” fairly easily. You just need to list each item and the agreement reached with respect to it. Then have both parties initial it. Don’t sign it, because that might turn it into a final agreement prematurely. A good rule to follow is not to sign anything before your lawyer reviews it.

Suggest to your spouse that your lawyer will prepare the first draft of a more formal “separation agreement” from the memorandum of understanding. Having your lawyer draft the agreement will allow you to find subtle ways to spin the words in your favor.

It is a false economy to think you will save money by having your spouse’s attorney prepare the first draft. Your attorney will probably charge you just as much to review the draft, but this is OK because she may save you money by catching any provisions that have been spun in your spouse’s favor by his attorney.

Reframe the Conversation

Suppose your spouse comes at you with, “I’m paying you alimony and child support and you want me to pay for college?” There is no good way to answer this question. Responding that it is because you are the economically independent parent is not very persuasive.

But most parents do want their children to go to college. So you need to reframe the question. Take the emphasis off the parties and put the focus on the children.

The reframed question could be, “How do we pay for college?” You can then consider various options such as the resources and incomes of both spouses and the grandparents and discuss loans, financial aid, and the costs of college. This allows it to become a financial-planning issue and not a question of one spouse versus the other.

Reframing is a useful negotiation technique for you to have in your toolbox. It can sometimes allow you to easily remove what seem to be intractable problems.

Summary

Armed with knowledge and preparation, and the strategy and tactics outlined in this chapter, you can negotiate your own separation agreement with your spouse. You have nothing to lose by trying. If it doesn’t work, then you’ll need the chapters in the next part of this book, which are all about trying your case before a judge.