What Are Divorce Negotiations?
Divorce negotiation is the process of discussing with your spouse how to split your marital assets and debts. These negotiations can be done with just the two of you, with a mediator, or with a mediator and lawyers. What negotiation looks like for you depends on the unique circumstances of your relationship.
Negotiating the terms of your divorce
Many couples about to get a divorce think they just need to sign some paperwork. Unfortunately, divorce is much more legally complex than that. Further, it’s (often) an emotionally charged process.
When you get divorced, you need to figure out how to divide your marital property, your debts, whether one spouse will receive alimony or child support, where your minor children will live, and what visitation may look like for a spouse without custody. These decisions are tough, and you cannot skip anything. Even the smallest spoon in the kitchen drawer must be divided (or at least assigned its new home).
This process can be challenging, and it comes with legal hurdles. Many couples feel overwhelmed by the amount of stuff they have as they begin the negotiation process. But negotiation is essential to finalizing your divorce and advancing to the next chapter of your life.
What divorce negotiations might look like
Divorce negotiations look different for every divorcing couple. Let’s look at some example negotiation situations.
Just the two of you
If you and your spouse can speak with one another cordially and respectfully, and you agree that divorce is the right decision for your marriage, you may be able to sit down at the kitchen table together and discuss how to divide everything. Even in the best of circumstances, you should expect this process to take many hours over the course of several days or weeks.
In this scenario, you’ll be resolving any disputes you have without outside help. For example, if you both want to keep the marital home, you’ll have to resolve that issue yourselves. Possible solutions include you offering to buy out your spouse to keep the marital home or you offering to give up your rights to your spouse’s retirement fund in exchange for the home (assuming the values are similar).
Help from a mediator
In a more contentious divorce – but one where a couple can still sit down at a table together – the couple may choose to hire a mediator to help them. If this is your situation, you may have already nailed down the majority of issues, i.e., who’s going to get what. But you might have a few disputes remaining, and hiring a mediator could be a good way to resolve them.
Mediators come without allegiance to either party. That’s key. Make sure the mediator you choose is not known by you or your spouse. While a good mediator will remain impartial, the appearance of a lack of impartiality could make negotiations go sideways. For uncontested divorces where you need to resolve a few issues, mediation is an excellent option that won’t break the bank.
Help from a lawyer
In a contested divorce, the parties often get their own lawyers. These attorneys can act as mediators and negotiate with each other. Your attorney and your spouse’s attorney will speak with each of you to gain an understanding of the situation and then speak to each other to resolve disputes. This type of negotiation often occurs when a divorcing couple has trouble speaking without it becoming overly emotional.
Lawyer plus mediator
If your divorce lawyers cannot reach a resolution, they may recommend hiring a mediator. This is often done when divorcing couples cannot agree on many, or at least a majority, of the matters at hand.
Finally, in some cases, a divorce court will order a couple to participate in mediation to resolve outstanding issues. Courts do this in an effort to reduce their own workload, but it also helps you keep control in your hands. If you go to court with unresolved issues, the judge will make decisions for you. For many people, maintaining control of asset division is crucial.
Glossary of terms to know
Alternative dispute resolution (ADR)
This is the umbrella term for the different ways people can resolve disputes before letting a judge decide. ADR commonly includes mediation. This process is less formal than court, less stressful, less costly, and still confidential.
This is a form of mediation where you rely on a third party to help you resolve issues. A collaborative divorce is one in which both spouses commit to resolving their disputes together and in good faith. Collaborative divorce is unlikely to work if one spouse holds resentment or anger toward the other.
A contested divorce is one in which the divorcing parties disagree on how to divide marital assets. Whether you disagree on one major issue or lots of issues, contested divorces often end up in ADR.
A type of ADR, divorce mediation occurs when you and your spouse sit with a neutral third party who helps you resolve any remaining disputes. This is often the first step couples take to resolve their differences.
True default divorce
When one spouse does not respond – or refuses to respond – to divorce paperwork, a court may enter a default judgment. This has the same effect as a regular divorce, though the spouse who is present will face a few hurdles.
An uncontested divorce happens when you and your spouse agree on all terms of your divorce. You must still file paperwork and see a judge to finalize your divorce, but it’s often faster and cheaper if you can agree on everything.