Different Ways to Get a Separation Agreement
When you go to a doctor, he usually starts with the least invasive and least expensive medical intervention, like “Take two aspirins and call me in the morning.” Then maybe he will order some tests. The most invasive and most expensive intervention is surgery.
Likewise, there are different ways to reach a settlement and obtain the goal of a fair-and-balanced separation agreement. They vary in complexity and cost. We will discuss each of the following, from the least invasive and expensive to the most invasive and expensive:
- Negotiation of your own agreement
- Mediation
- Collaborative law
- Negotiation by attorneys
- Arbitration
- Trial
Negotiate Your Own Separation Agreement
The most straightforward way to reach an agreement is to sit down at the kitchen table with your spouse and talk about it. Use the checklist for a separation agreement in the last chapter. Go through the items one by one. Take notes.
Then, flip a coin to see who goes first. Have each person state a position on the first item. You and your spouse should not interrupt one another.
If you can find a compromise between the two positions that you both agree on, mark that on the checklist with an “A” for “agreed” and move on to the next item. If you get stuck on an item, mark it with “NA” for “not agreed” and come back to it after you get through the whole list.
It may help to make a rule that agreement on each item is conditioned on full agreement on all items. That way, no one feels locked in until they get a chance to look at the whole checklist.
Listen carefully and ask questions. The first stage of negotiations is to obtain information. If you reach an impasse on a certain item, a key question is “Why?”
Here’s an example: “I want 50 percent of the time with the children,” says Theodore.
“I want every weekday with the children,” says Charlotte.
Theodore’s first thought is “No way!” But then he has a second thought. “Why do you want every weekday with the children?” he asks her.
“Because you don’t help them with their homework for school,” she tells him.
“What if we put in the separation agreement that I will help them with their homework each night that they are with me, and that I will initial their worksheet and put it in their school notebook so you can see that I did it?”
“Well, that might work. I’ll have to think about it,” Charlotte replies.
Tip When negotiating at the kitchen table, ask questions, gather information, and create options.
Interest-Based Bargaining vs. Position-Based Bargaining
Interest-based bargaining works in negotiations because people want different things. The metaphor, often used by mediators and popularized by the classic book Getting to Yes,1 is an orange on the kitchen table. Both parties want the orange. That’s their position and the negotiations can go no further. They have reached an impasse.
But then you ask them why they want the orange. It turns out that one likes the pulp. The other wants orange juice. Both can get what they want. By asking why, you have pierced through their position and can get to their interest. Position-based bargaining creates an impasse. Interest-based bargaining opens up other options for resolution. I’ll give you some more tips for negotiating your own separation agreement in the next chapter.
Tip Try to find the interest behind the position. It’s one of the best ways to break through logjams to negotiation.
Success in kitchen table negotiations requires good communication skills. We all think that if we talk and talk and talk, the other person will finally see that we are right. That won’t work in this case. You will have to ask questions and listen to the answers in order to find a compromise that meets the interests of both of you and your children.
It is very hard to have good communication skills in the middle of the stress and upheaval of a divorce in which you are worried about your future, where you are going to live, and how you will pay for basic expenses. After all, if the two of you were able to communicate and reach agreements during your marriage, you might not be getting divorced.
Once you reach an agreement, write up your checklist and notes as a “memorandum of agreement,” or what the business lawyers call a “deal memo.” Both of you should initial it. Then, give it to a lawyer to turn it into a more formal legal document.
Note Someone once said that a good settlement is one in which each side gives up 60 percent.
When the parties are unable to reach an agreement by themselves, they can seek the help of a neutral third party, called a mediator, to guide them through the process of reaching an agreement. The mediator can be a lawyer, a psychologist, or anyone else with the proper training.
Neutral means the mediator does not represent either party. The mediator is there to guide the discussions and explore various options to resolve the issues that need to be addressed in a separation agreement.
Mediation proceeds through a series of meetings with the parties and the mediator. Lawyers can be present as well if the parties desire, but many meetings take place without them. They usually last about two hours. It may take several of them to cover all of the issues. The cost is divided between the parties.
The first meeting is usually an orientation. The mediator will introduce himself and go over the process. The mediator may also give you financial forms to fill out and bring to the next meeting.
Mediation also works on the principles of interest-based bargaining. The mediator attempts to facilitate a problem-solving approach and minimize conflict. The mediator’s training and experience in family law allows him to propose different options for solving the issues in a divorce.
Another useful technique used by mediators is reframing the problem. That means viewing and stating the issue in a different way. For example, “Why should she get a penny from me when she is to blame?” would be reframed as “How can we arrange our finances and resources so that both of us can be self-supporting in the shortest possible time?”
The mediator can help translate for parties that have stopped listening to one another. Sometimes a mediator has to say, “She heard what you proposed. Did you hear her say no?”
The mediator will usually take the issues one by one and more or less track the separation agreement checklist I provided for you in the previous chapter.
To go this route, both parties have to agree to private mediation. A court may order the parties in a divorce to attend mandatory mediation. In both cases, mediation is nonbinding. That means you do not have to reach an agrement in mediation if you are not satisfied with the terms.
If there is an imbalance of power between the parties, it is the job of the mediator to level the playing field. Most mediation is done with both parties present. But you may request to meet with the mediator alone if there is something you want to say privately. Or the mediator may split the parties up if that will help resolve more sensitive conflicts.
The end result may be a memorandum of understanding that you would then take to a lawyer to put in the form of a “separation agreement.” Or the mediator might prepare the final separation agreement for you to review with a lawyer before signing.
Tip If you are unsuccessful in negotiating with your spouse on your own, try a mediator who can guide both of you through the process of settling your divorce.
The legal system is adversarial. It is a form of civilized combat. The theory is that the divorce case is presented by advocates for each side and the judge will be able to discern the truth from this conflict.
In fact, a large majority of divorce cases settle before trial. Yet the lawyer must start thinking about trial the moment you walk in the door. Collaborative law divides the process into the two parts, namely settlement and trial.
The collaborative lawyers are the settlement lawyers. They are specially trained for this function. You engage them only for the purposes of settling your case. If they do not succeed, then they must withdraw from the case and you will have to hire different lawyers to try your case.
The approach collaborative lawyers take is to engage in problem solving to minimize conflict, just as in mediation. They cooperate with each other to solve disputes rather than fighting with each other to get the most out of the divorce for their respective clients. The parties agree to disclose all financial matters early and voluntarily.
An important principle of collaborative law is that the lawyers and the parties should be able to explore long-term nonfinancial goals, such as having a beneficial parenting relationship with each other after the divorce, rather than burning all their bridges.
Collaborative law proceeds through a series of four-way meetings, meaning that both parties and their lawyers are present. This is an advantage in that there is no delay or misunderstanding in communications, and everyone can ask questions to clarify. You don’t have to talk to your lawyer, who talks to your spouse’s lawyer, who talks to your spouse.
After the four-way meeting, the lawyers talk between themselves to summarize the progress and plan the agenda for the next meeting.
If an impasse is reached, say about child time-sharing, another professional, like a custody expert, may be called in to give recommendations.
Like mediation, collaborative law is nonbinding, meaning you don’t have to reach an agreement during the process if you don’t want to. But in collaborative law, if you fail to reach an agreement, you have to find new counsel to litigate your case. That can sometimes work to encourage a settlement.
Note In collaborative law, the goals can include long-term nonfinancial objectives.
Using an attorney is the traditional approach to reaching a settlement agreement. The advantage is that the attorneys are one step removed from the emotional whirlwinds of the divorce. This allows them to concentrate on the issues that need to be decided with respect to the children and the finances with a minimum amount of drama.
Usually, the first thing that happens after your initial consultation is that the attorney will send a letter to your spouse. The letter informs your spouse that the attorney has been retained and wishes to discuss a separation agreement.
If your spouse hires an attorney, that attorney will contact your attorney. The next step is information gathering, which they do by arranging for an exchange of financial information. This is sometimes called voluntary discovery since it is not conducted under the more formal and onerous rules of discovery that apply once litigation is commenced.
It will help your attorney to have a written summary of your objectives. The days are past when the client gave a problem to an attorney and the attorney simply came back with a solution. Nowadays, the attorney keeps you advised of the negotiations and sends you copies of all letters, faxes, and e-mails that go back and forth between the two attorneys. The attorney cannot make agreements without your consent, but once you give your consent, your attorney speaks for you.
One of the attorneys usually prepares a written settlement proposal and the other answers with a counterproposal. Negotiations go back and forth between them and hopefully get closer together to the settlement with each iteration, each side making concessions and compromises, until all issues are resolved.
In principled negotiations, one side makes a proposal and the other responds with specific objections or a counterproposal. This reduces the number of disputes. The lawyers then negotiate each area of dispute, making compromises until there are no disputes left.
Negotiations can proceed even after the litigation has started. They can take place in person, by telephone, or by correspondence.
Tip Lawyers are one step removed from the divorce, so they can negotiate a settlement without emotional turmoil.
Unlike a mediator, who offers only options and suggestions, an arbitrator will listen to both you and your spouse as well as both of your lawyers and then issue a written decision in your case.
You can define by agreement how you want to set up your arbitration. It can be binding or nonbinding. You can suggest whether or not you want the arbitrator to be limited, as is the judge, by the family law of your state.
You can also select nonbinding arbitration, in which case the decision is advisory only. It may help you settle your case to see how an arbitrator views it. If you don’t choose to go this route, you will have to try your case before a judge.
If you select binding arbitration, you can file the decision of the arbitrator with the court and it will become a court order. You can appeal this decision in court unless you have agreed to waive your appeal rights.
The advantage of arbitration is that usually it costs less and you can get a decision sooner than in a trial.
If you are unable to reach an agreement, then you will have to have a trial, which I will discuss in Part 6. This, like surgery, is the most invasive and expensive approach. The trial may last a day, a week, or longer. Both sides will offer evidence and witnesses. The judge will then make an agreement for you, which is called the “decree of divorce.”
Summary
With what you have learned about child custody, alimony, and property division in a divorce, and the advantages of a separation agreement, you are probably ready to use your checklist to try to reach a settlement. There is more than one way to obtain a separation agreement. Select the one that feels most comfortable to your personality and style. See if your spouse agrees.
Next, we’ll take a look at some tips and techniques for negotiating a separation agreement.
1 Roger Fisher, William L. Ury, and Bruce Patton, Getting to Yes: Negotiating Agreement Without Giving In (New York: Penguin, 2011).