Negotiations - The Art of Getting All the Stuff

Now that the discovery process is underway, negotiations should be starting. I like to ask my clients for a settlement proposal as early as possible. Not that I'm going to give it to the other side, it's more so I can see where my client's at and where they're going. These proposals give me all sorts of clues. When my client asks for the house, every single possession and their spouse's pay check, I know that I'm going to have a lot of splainin' to do to my client. I stock up on aspirin at that point. Other proposals are more reasonable and they tell me what is important to my client. Some focus on the children. Some focus on houses. Some focus on support. Whatever the proposal focuses on is what is most important to my client and/or is creating the most anxiety for them. Knowing this makes it far easier to negotiate for my client and also to make my client happy, (if there is such an animal in family court.)

Settlements do not have to be fair in any sense of the word, neither legally nor morally. If you and spouse agree to something that's okey-dokey with the Court even if it is totally one-sided. Once in a while I get a case where the parties do what's right, not what's the law. By that I mean, even though by law the house should probably get sold and the equity split, the parties agree to let the custodial parent live in the home for the sake of the kids. Those cases renew my faith in humanity. Ain't too many of them.

Even during the litigation I encourage my clients to negotiate with their spouse if they are still able to communicate civilly. Not only will you save a lot of money in fees, but you and your spouse know better than your lawyers what is good for you and your family. Once again my mantra: if you can do it yourself, don't pay me to do it.

Negotiations between lawyers is a whole different ballgame. A lot depends on the lawyers themselves. I deal with many lawyers who are absolutely wonderful to work with. Their goal is to settle the case as quickly as possible with the best deal for their client. I know other lawyers who are a nightmare. They ignore their client's wishes, they won't deal or compromise at all, they seem to feel the need to churn the wheels of justice even when unnecessary. Your lawyer may be doing a stupendous job for you but isn't getting anywhere because of the other lawyer. To illustrate: the house is not an issue, it's a pre-marital asset by 10 years and the parties have only been married for 2 years. The attorney from hell insists on an appraisal and won't discuss any settlement until the appraisal is done. A judge will not typically deny the request for an appraisal as the distribution of the house is an issue left for trial. Shoot me now. If the opposing attorney is this type of lawyer, don't blame your poor beleaguered attorney, they are more than likely doing everything they can.

To negotiate a deal which is good for you does require you to decide what is important to you and what you are willing to compromise on. Do you really want the house and are willing to give up your share in the pension to get it? It also requires you to be reasonable. Are you really willing to put your family through a custody evaluation and battle just because your spouse smoked pot 30 years ago? It is often difficult for litigants to negotiate unemotionally, this is why you have a lawyer. I'm not mad because your spouse insisted on buying a car last year that you couldn't afford. Let your lawyer guide you through negotiations as someone who is not only knowledgeable about the law, but is an unbiased third party. I have dealt with people who turn into 2 year olds when it comes to negotiations. I suggest the spouse get the kids for tax purposes since you don't work and they're paying alimony and support-No! I suggest that since you have 3 TV's that the spouse get one-No! I suggest that the spouse have the kids while you're working to save on daycare costs-No! This type of negotiation tactic is only going to get you a time out, not a decent settlement.

Some issues can not be settled until all the information is in. Be patient. I am not going to suggest you swap your slice of the pension pie for the house without knowing what the value of each is. That's just plain stupid and probably malpractice too. Also, don't ask me to propose that to the other side, it's a waste of time. I recently had a client who absolutely insisted, against everything I said, that I propose the most one-sided settlement as a final offer. This person actually meant it too. I told the other attorney I was faxing him a proposal, he asked if it was a good one, I flat out told him no. I couldn't lie, the proposal was worse than bad, my client was demanding every asset the parties had, I would have looked like a dimwit if I had said I thought it was a good fair proposal. After reading the proposal, the other attorney was laughing so hard when he called me that he could hardly talk. I told my client the offer was rejected and he fired me. Yahoo! Clients like that are just not worth their billable hours.

One of the basic principles of negotiation is "good faith." You must negotiate in good faith. Don't propose a deal that you have no intention of honoring. Don't propose nor accept a deal unless you fully understand that it will be binding and enforceable (ooh, sound like some legal s&m). I actually get people who accept deals and then later tell me that their spouse will never make them sell the house. On what planet do these people reside? I also deal with the opposite. I get a settlement involving support and it becomes apparent real quick that the other party has no intention of paying support. Guess what, just because your case is over doesn't mean that you'll never see your favorite judge again. Entering into a deal and not following it is a sure way to spend leisure time in Court arguing Motions for Enforcement.

There's lots of things to weigh when you're negotiating a settlement. Your attorney will know and advise you of the legal side. Only you can judge the personal side. If a settlement is better for you personally than financially there's nothing wrong with that. Unlike a lot of the world, I don't judge success with dollar signs, your happiness is far more valuable then your portfolio. Reason and compromise are are crucial. Most cases should settle. I can count on one hand the cases where I really felt there was an issue which needed to be decided by a Judge. Don't make me use my other hand.


If you are able to come to a settlement agreement, all the turmoil stops then and there. One of the attorney's will write up the agreement. Everyone will sign it. Some joyous attorney will inform the judge who will schedule a date for the hearing and voila!, you will be divorced. Makes my heart sing just to think about it.

Parting shot: if you have a lawyer who will not listen to what you want and insists that you need to wring every last cent cent out of your spouse, find a new lawyer. A lawyer who ignores their client's personal needs is only doing half their job. A good lawyer will advise you of the law and what you are entitled to and will follow your wishes even if you end up a little behind in the plus column.

Stay tuned: The Pendente Lite Motion. Lawyers proving they know Latin.