Articles

Divorce is Like Being Lost in the Woods |
Negotiating Your Divorce

Divorce is Like Being
Lost in the Woods

By Gary Marsh LMSW, Facilitative Divorce Mediator

Finding the best path to agreements about separation, property division, parenting, and support is difficult because there are barriers to seeing the way clearly.

Some barriers are internal:

• Memories of the road that led to this traumatic and unwelcome place.
  
  
• Grieving the lost fantasy of having a life long companion or the fantasy of an estate intact and available at retirement.
  
  
• The fear of becoming destitute.
  
  
• The fear of losing relationships with children.
  
  
• The fear of being cheated or unknowingly making mistakes you will regret for the rest of your life.
  
  
• Feeling betrayed, rejected, guilty, angry or resentful.
  

Some barriers are external:.

• A spouses hurtful, confusing and/or provocative words and behavior.
  
  
• Friends who give dubious advice.
  
  
• Questions needing an answer that are for issues not understood.
  

In order to deal successfully with the obstructed view, tools and understanding are needed.

Divorcing spouses have many reasons to agree:

• The health and welfare of children
  
• The cost of the divorce
• Privacy
• Financial issues
• Time
• Amicability
• Control
• Fairness
  

The health and welfare of children

In a divorce, children do best when parents are able to cooperate and when children are not exposed to parents' hostility toward each another. At the beginning, parents can protect their children by committing to cooperation and to keeping the children out of the parents' conflict.

1. Commit to cooperation. Functioning as a family successfully from two households takes planning, coordination, and communication.

2. Establish goals together. How much will you try to coordinate households? Depending on the age of your children, consistent discipline strategies and consistent expectations about bedtime, schoolwork, curfew, dating, and driving can be very important. Which decisions will be made together? Design a plan, including begin and end times, that lays out specifically how the children's schedule will work. Get agreements on the amount of vacation each parent will have with the children and how school breaks will be handled each year. Decide how frequently communication between parents about day-to-day child issues and larger discussions about school year and summer vacation will occur. Decide a strategy for what happens when agreement is not reached.

3. Keep your negative feelings toward each other away from the children. Speak only positively or neutrally about the other parent in the presence of the children, including when you are on the phone and children are around.

4. Have discussions about the children away from them.

5. Communicate directly, not through the children.



The cost of the divorce

Spending as little as possible on the divorce will leave more resources for other needs. Several methods are available to you, each with varying costs:

1. Negotiate on your own. The biggest savings can be achieved by negotiating the issues in the divorce your selves. The most frequent obstacle people have is the discussion becoming emotionally volatile. These strategies may help. Some people can better control their emotions in public; meet at a restaurant or public place. Another strategy is to set the discussion on an emotionally charged issue aside and come back to it at another time. Talk about other issues. Any decisions made on your own will save money.

2. Facilitative Mediation. If talking is difficult because one or both of you becomes emotional, you have trouble staying on one issue, your discussion is disorganized, you are not hearing each other, or you are unsure of the issues, hire a facilitative mediator. Going through a divorce is like being lost in the woods. A mediator can guide both of you out. A mediator will organize you, keep you communicating productively about one issue at a time, help you develop strategies for dealing with issues, and help clarify each of your needs and interests. The mediator will also maintain focus on the decision-making process. A facilitative mediator is neutral. You make all the decisions.

3. Attorney negotiation. In a typical divorce, attorneys negotiate for their clients. Two people are paid to negotiate. If you are unable to negotiate yourselves you may need someone to negotiate for you. You can still save money, however, by using the other two methods to get as many decisions made as possible. Thereby shrinking the task of the attorneys.

4. The Courts. If attorneys are unable to settle the issues, they can and often do request a referee hearing or another problem solving strategy arranged by the court. Attorneys will most likely be present. It takes each attorney time to prepare, and the hearing or meeting can last several hours to an entire day. If you find yourselves going to a referee, or another court sponsored program, you can still save money, as before, by negotiating as many agreements as possible using other methods.

If you find yourselves in front of a judge in an evidentiary hearing or trial, you have entered the most expensive place a divorcing couple can be. Sometimes one party in a divorce needs to hear from a judge what the judge would decide on an issue. You do not need a trial to get that information. Ask your attorney. In most courts, there are pretrial hearings, settlement conferences, and motion hearings where questions can be asked of the judge. These are places where the question can be asked, and cost can be kept to a minimum.
The second biggest savings in divorce can be achieved by sharing information freely. Make copies of documents, and make sure both of you have them.
You can also save money by avoiding duplicating efforts. If you need information or advice from an expert, hire one together.

Privacy

The less you involve others, the more privacy you have. If you negotiate the issues in the divorce yourselves, you have the most privacy. Using a mediator adds one person. If you have attorneys negotiate for you, add two people. Go to a referee, add another. If you discuss the issues in your divorce in an evidentiary hearing, you have no privacy.

A court hearing is required to be divorced. In the State of Michigan, if you have an agreement, only one of you has to be present to testify. The Judge at the hearing signs the judgment document that makes a couple legally divorced. The hearing itself is public, but if you go in with an agreement (a consent judgment), you have protected your privacy as much as possible.
The judgment document will be held by the court and is a public record. The judgment document must include information having to do with children, support, and court orders but most information about assets and liabilities can be in a separate agreement referred to but not attached to the judgment. The separate agreement is called a settlement agreement. By having a settlement agreement kept separate from the judgment, you can keep information about your property division private.

Financial issues

Plan your separation, support, and property division to best meet everyone's needs.
Plan your separation and support so that adequate resources can be available to set up and maintain two separate households. That way no one will suffer financial hardship.
Design the property division to suit your different needs. If one of you needs enough cash for a down payment on a house and/or to keep the mortgage payment at a level you can afford, together, if the resources are available, you can structure the property division to allow this to happen.
When couples make decisions, they are more likely to follow through on what is required. In other words, an agreement designed by you is more likely to work.


Time

Making decisions together allows issues to be addressed in a timely way. This can only happen with cooperation. Negotiating through attorneys or asking attorneys to file motions with the court takes time.
Some couples can save money by filing income taxes jointly. Your marital status on December 31 of any tax year, determines your choices. If you would like to file taxes jointly for a given year, timing the divorce might allow you to have the option, ask your accountant.
Delays cost parties money. Deal with the court system when you are ready. Then you are not paying anyone to explain to the courts how much more time you need to get ready. This can be accomplished by filing the complaint after you have an agreement.
In Michigan, a complaint needs to be filed to begin the process. The statutory wait before a couple can finalize a Divorce is 60 days without minor children and 180 days when the couple has minor children from the date of filing the complaint. If you are ready with an agreement, sometimes the court will waive part of the 180 days, ask your attorneys.

Amicability

Divorce is a traumatic event in the lives of everyone involved. Conflict is traumatic and increases stress. To keep trauma to a minimum, keep conflict to a minimum.
You can keep conflict to a minimum by avoiding surprises. Until you untangle yourselves financially make all decisions, about spending or moving money, together. If you would like to close out a joint savings account, talk about it together. Plan together how your interactions with the court system will proceed. Decide together; who will file the complaint and when filing the complaint will occur. Make agreements you intend to keep. Making decisions about the divorce together and sticking with agreements will reduce the feelings for both of you of your life being out of control. It will also maintain and improve trust.
You need to find a way to think about your situation that will allow you to deal civilly with each other. One way is to picture your marriage as a sinking ship. Your task is to make sure everyone gets safely into lifeboats and away from the ship.

Control

When you make decisions yourselves, you control the outcome. Turn the decision over to someone else, and they control the outcome.
It is ironic that at a time when a relationship is coming apart, coming together is needed. However, decisions need to be made, and the only question is who will make them. It is impossible for one spouse to control the outcome by him/herself. Spouses can control the outcome if they share control with each other and by designing it together.

Fairness

You are most likely to feel the divorce settlement is fair, if you design it yourselves.
Everyone has his or her own version of fairness. If you need to feel that you were treated fairly in your divorce, you need to limit the number of decision-makers as much as possible. If you and your spouse are the only decision-makers, then there are only two measures of fairness to meet. Because everyone has his or her own version of fairness, each decision-maker you add diminishes the likelihood that you will feel the divorce is fair.

It is possible to make your own decisions about your divorce and address all of these concerns successfully. Keeping your shared needs and interests in mind, will help you make decisions and reach agreements.

© Copyright 2000-2009 Ann Arbor Mediation Center

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Articles

Divorce is Like Being Lost in the Woods |
Negotiating Your Divorce

NEGOTIATING YOUR DIVORCE

You can save the most money by negotiating your own divorce. When parents divorce, their children do best when they can cooperate. If you successfully negotiate your divorce yourselves, because you were able to figure out how to make decisions together, you will increase the likelihood that you will have a cooperative relationship after the divorce.

People do not get divorced often enough to know how to do it. Negotiating with a soon to be ex-spouse is unlike any other negotiation. Fortunately, the knowledge needed is not rocket science. Here are some negotiation tips:

Be an observer of yourself and everyone around you. Being an observer of yourself will help you distance yourself from your emotions. Divorce is a hurtful, anxious, scary and angry place for anyone to be. People often become overwhelmed with their emotions and, like the wind to a flame, reactive to what is going on around them. One can predict what emotions will result from a divorce. But, emotions are irrational and, because they are irrational, they can cause problems in decision-making. Acting on your emotions is a bad idea. By creating distance, you can avoid being reactive and it will enable you to take deliberate strategic and effective action. By creating distance, you will be able to look beyond the behavior of your spouse and not react impulsively to it.

Be patient and persistent without being pushy. Cooperation is so valuable it is worth waiting for. If you are pushed, the natural response is to resist. You want cooperation not resistance, so do not push.

Damage control. It would help if you had a guiding general concept for how you are approaching this challenge to help you get organized, measure progress and measure success. Divorce is a traumatic event. Suffering injury or damage is unavoidable. In divorce, damage is mostly financial, emotional and social. You may not be able to avoid some damage, however, the extent of the damage is something you can limit. Make your mission damage control. Keep damage to a minimum.

Redefine your relationship with your spouse. People struggle with the changes divorce creates in a relationship. One place they stumble is with the end of intimacy. Marriage is an unwritten social contract, an agreement to be intimate sexually and emotionally. As soon as one spouse decides the marriage is over, the social contract has ended. Renegotiation is needed. It is unreasonable to expect a sexual relationship to continue beyond that decision. It is also unreasonable to expect that you should be able to freely share your negative emotions with your spouse beyond that decision. If you fail to recognize this and share your anger and disappointment, your spouse will likely return your anger and disappointment in kind or more likely distance him or herself from you, which will reduce opportunities to communicate. You need opportunities to communicate. Keep in mind emotions unexpressed tend to find a way to become expressed. You need to express them, but direct your negative emotions away from your spouse. A good way to express them is in activities or you could take them to a therapist.

When you got married, your relationship was a positive intimacy. Somewhere along the line it became a negative intimacy. Some divorcing couples see themselves as better friends than spouses and want to end their marriage but preserve their friendship. Recognizing their need for a functioning parenting relationship, some want a friendly relationship, where they can comfortably sit together on the sidelines cheering on their children or comfortably sit together at parent teacher conferences. For people who have children but cannot be friends or friendly, a civil relationship is needed, a business relationship. Business relationships are characterized by written agreements, which help maintain understanding and clarity about what is expected. Making commitments and keeping them make the business of raising children work.

Negotiation and problem-solving in general are processes. There is a beginning, a middle and an end. Thinking about the process, the first task is to identify issues. Once you identify an issue, take the time to understand it. Once you feel you understand it, think of as many ways of dealing with it (solutions) as possible. The advantage of this is you may find solutions that are mutually beneficial. These are easy to say “yes” to. If, after turning over every stone, none of the solutions are mutually beneficial, is there a trade that could be made that would make one of them work? Think about all the issues you have to deal with. If you have not fully explored all of the issues, come back to this one because once you have fully explored all of the issues, a trade might appear. If there is no mutually beneficial solution and no trade is found, compromise is necessary. When people realize compromise is needed, those who negotiate well with each other, do it easily.

Sometimes having other people around helps us manage our emotions. Try meeting at a restaurant. Anticipate that there will be times when despite your efforts you will become overwhelmed with emotion. Give each other permission to end a conversation without explanation. The other person will likely be anxious to continue the discussion. You can deal with this by scheduling the next meeting. Then they will be relieved knowing when the discussion will resume. Some issues provoke more emotion than others. Give each other permission to change the focus of the discussion. There are lots of details to discuss. Focus on easy ones and get them out of the way.

Discussions tend to be drawn to the past. Negotiating with someone with whom you have a history makes it difficult to stay on a topic, and sometimes results in not so helpful tangents about the past. The decisions you need to make are about the future. You need to stay in the present and focus on the future. At the beginning or in advance of your meeting, create an agenda and agree in advance to stay with the agenda. Then each of you can remind the other of your agreed upon intention to stay with the agenda.

Informed decision-making. Everyone faced with divorce worries about making a mistake out of ignorance. Take the time for both of you to get informed before you finalize decisions. If you get stuck, it may be that you need more information. Gather documentation. Consult with appropriate professionals. Share information freely. Ask if your spouse has enough information to make decisions and, if possible, help them get it if they don’t.
Clarity gets lost when relationships break down. Communication becomes strained so people avoid it. If they avoid it, they are forced to rely on their memory of comments made in the past. There are several problems with this. People change their minds because of new information. People make statements when distressed out of guilt, anger, and fear. Those statements end up being distorted at the transmitter and, at the receiver. Ask whether you heard them right; accept the answer. If you got it right, ask if they are still thinking along the same lines. This will avoid confusion and keep you in the here and now planning the future, which is exactly where you need to be.

Most people worry about being tricked or manipulated into something that is not in their interest. And who is the most likely candidate to trick them into something that is not in their interest, their spouse. People look for evidence that their concern is justified. It is as if ideas and information are received through a filter that lets in everything that supports this idea. Incidentally, nothing feels more like manipulation than threats, emotional intensity, impassioned explanations, talking as if decisions have already been made, a provocative letter from an attorney, being surprised, or filing a motion with the courts. Share your thoughts and ask questions. “This is what I was thinking.” “What do you think?” Sharing ideas freely is openness. Openness is reassuring. The act of asking a question is an invitation to share control.

The odds of disagreement are high and a normal part of divorce negotiation. This does not change the fact that you need a solution and that one can be found. Agree to disagree and don’t worry about it.

One reason people disagree has to do with their perspectives being different. Einstein’s Theory of Relativity. Einstein’s theory explains that experience is determined by your point-of-reference. Two people see the same event from two difference points of reference and as a result draw different conclusions.

A second reason is that people trust their own judgment and, combined with the emotions of divorce, cling to solutions they come up with. An indicator you may be clinging to an idea is when you find you are repeating a rationale or proposal as if you were not heard the first time. After all, if people heard and understood me they would see the value of my conclusions and agree. You are likely to feel panic when you realize your idea is not accepted. The solution satisfied a concern. The panic is the concern without a solution. Your solution may have been driven by emotions. Be prepared to let go of, or modify your ideas. Once you have examined other possibilities, you may be able to revisit the idea with new eyes.

The problem with the argument, the rationale, the “why.” A common misconception is that the rationale or argument determines the solution, that the best argument wins the debate and defines the outcome. It can, if your spouse agrees. When people agree on a rationale, the solution follows. However, once people disagree on the rationale, then the rationale has only one remaining use, it identifies needs. When you hear a rationale or proposal that you do not find acceptable, try to figure out the need that the rationale or proposal is trying to address. This is useful because, if you can figure out what need is being expressed by a rationale or proposal, there may be other ways to address the need that are acceptable to both of you. Most of the time, when a rationale is not immediately accepted, the rationale becomes a liability in the negotiation. You will know the rationale is not accepted, no longer useful and likely a liability, when the response to it is an argument against it or an alternative rationale. When this happens, if you do not let the rationale go, the rationale becomes a distraction, a tangent from the negotiation and you will become frustrated. Frustration promotes pessimism. Pessimism is self-defeating. Shift the discussion to “what” to do and away from “why” to do it. You need to agree “what” to do not “why “ to do it. The reality is that most people have their own reasons for saying “yes.” If you press your reasons, you are getting in the way of them finding their own reasons. Be clear about what you are proposing and get out of the way so they can find their reason to say “yes.”

Negotiate a comfortable pace and remember good agreements survive time and scrutiny.

When I first became a facilitative divorce mediator, I attended a mediator luncheon at which a Presbyterian minister had been asked to speak to the group. He explained that part of his ministry was to hospice centers and hospital intensive care units. He said when he ministered to the elderly he encountered, they would naturally want to talk about their lives and all said similar things. They talked about when various people entered and left their lives. You will always remember this time in your life. It is an important moment. If makes sense that it will be a difficult challenge for you to face. Be patient with yourself.