How active should you be in the negotiations? That will depend largely on the state of your emotions. The basic fact is that you are the principal – your lawyer is there to advise you and represent you, but what is being decided is your financial future. In my experience, clients can range from almost totally passive (“I don’t understand all this – you do what you think is best”) to excessively controlling (“I want to know about every letter and phone call beforehand”).
In many matrimonial cases there are a limited number of assets – equity in a house, savings, a pension. After the current value of the house and pension have been set by expert appraisers, the dollar amount of the property to be divided is often fairly clear. The issues come down to the method of division: Does the wife keep the house and enough of the savings to offset the value of the pension and the remainder of the savings? Does the wife get in a lump sum now her share of the pension and savings as well as half-ownership of the house, which is to be sold and divided when the last child goes off to college? Who gets the liquid assets – the savings – which will generate income to live on? . . . .
Before your lawyer makes a proposal, you should discuss your priorities thoroughly and decide what you will insist on having and what you would be willing to compromise or even give up. Of course, you will have more leverage in negotiating if you have not revealed or even hinted at these priorities to your husband and if you can infer from his past behavior what his priorities.
Your proposal can then be structured to give you the maximum possible amount you can get in the form that best suits your needs. Ideally, this first proposal will stretch the upper limit of what you might get after a trial – without going too far above it. If your husband’s lawyer is skillful, his first offer will be at the lower end of the same scale. Between them, the two proposals will have defined the area for bargaining.
The threat of a trial is the matrimonial lawyer’s ultimate weapon and, like any heavy artillery, it should be used carefully or it may backfire. In the course of negotiating, each lawyer will be rehearsing or hinting at the arguments that might sway a judge, and trying to undermine the other lawyer’s confidence in the persuasiveness of the opposing arguments. These skirmishes can lead to an agreement if both sides are willing to make concessions in order to avoid the expense and uncertainty of a trial. But if one side or the other refuses to budge, a trial may be the only alternative..
Some cases are solved at a pretrial conference, but you and your lawyer may need time to consider the judge’s guidance as may your husband and his lawyer. With disagreements narrowed, and a sense of what the judge may do, both sides often sit down soon afterward and negotiate the remaining issues.
But it is important to remember that at a pretrial conference, the judge is only acting as a mediator and adviser, trying to move your case toward a settlement (and incidentally to unclog the crowded court calendar). No judge can issue a binding order until the parties agree or until all the evidence and arguments have been heard in a trial.
If you have any other questions about negotiating your divorce settlement, contact us.
* Brenner, Lois and Robert Stein. “Negotiating to Get What You Deserve” Getting Your Share: A Woman’s Guide to Successful Divorce Strategies. San Jose: Authors Choice Press, 1989. 80-98. Print.