Some people are chronic negotiators. Depending on their circumstances, the nature of their relationship with their soon to be ex, and the facts surrounding the separation, this may or may not be a good thing.
I’ve had a handful of really strong minded clients in my day, who come in and tell me what they want. Then, they go home, and tell their husbands. And their husbands just…do it. For whatever reason, they just jump on that train, and sign the agreement – sometimes without even an attorney’s involvement. Hey, they’re grown up men, they can handle it. In that case, I’m all warm and fuzzy about it.
But in other cases, especially cases where there’s been some domestic violence, I find that there’s a lot of bullying that goes on behind the scenes.
I’m always scared when I hear these women are negotiating with their husbands. Especially when – and it’s sometimes the case – they are the kind who are prone to drawing up their own agreements, without consulting counsel.
I mean, you’re an adult. That’s your right. You don’t have to consult your attorney before you make or accept an offer to your husband. It’s totally up to you.
But… I also think it’s worth considering that, after having handled hundreds or even thousands of divorces, your attorney might have some pointers that could help. She might even tell you that something you thought sounded pretty good is actually a terrible idea.
An example? Sure, I think examples are always good and usually quite helpful. Let’s say you’ve got children. Obviously, out of everything in your divorce, custody is your #1. Women can be manipulated in all kinds of different ways where custody is a concern. What if your husband says to you, “If you waive spousal support and/or my retirement, I’ll give you custody.” What would you say? Does that sound pretty good? Well, sure, you’d like spousal support – but didn’t we just say that the most important thing to you is custody?
If you made this deal, you’d be crazy. You might not know exactly how divorce law works – and, hey, I get it, you don’t do this every day. But the way it works is that equitable distribution (so, support and the way your property is divided) is one and done. You negotiate, you sign, and that’s it. Once waived, you can’t un-waive your right to something. Even if there were things you didn’t know or didn’t understand, and even if the circumstances changed later.
Custody? It doesn’t work that way. Custody is always modifiable based on a material change in circumstances. So, you could waive spousal support and/or your interest in his retirement (it really doesn’t matter, since this is just an example) and then your darling ex-husband could petition the court to modify custody. Now that you’ve waived these things, you REALLY don’t have the resources to fight him. Maybe you can’t even afford an attorney. He could walk away with custody, even if you waived those things to keep it. Custody is always based on a “best interests of the child” standard, so the court won’t be looking at fairness or whether he should be held to his bargain – the court is looking at the children, and whether time with dad is in their best interests. If I had to guess? I’d say the court will find that having dad in their life is in the best interests.
Another example? Okay, here’s a good one. I have a client who recently told me that she agreed to allow her husband to refinance the marital residence into his sole name in exchange for giving her $60k. She told me she had already agreed, and couldn’t I just write it up?
Well, yeah, I could. Of course I could. But I had some questions first. Did she have a copy of the mortgage interest statement? How much equity was there? Is $60k representative of her half? Before this, we’d only ever talked about selling the house and splitting the proceeds – but I had no way of knowing whether $60k was similar to what she would have received otherwise or not.
I don’t know why people go around agreeing to things with incomplete information. She explained his math – but still didn’t provide any mortgage interest statement.
You can agree to whatever you want, with or without your attorney. But, especially in a case where there’s an uneven balance of power, it’s probably a good idea to at least consult with an attorney before you agree. Sure, you can un-agree – as long as it’s not written and signed, chances are it can be changed. But it just often does more harm than good.
How hard is it to say, “Thanks for the offer. I’ll run it by my attorney and let you know.” There’s no need to commit on the spot, even if he tells you that you should. I’ve never had a husband make an offer and then withdraw it because his wife didn’t accept on the spot. There IS time to consult with an attorney and make sure that the deal is as good as you think it is before you jump straight in.
Make sure you know and understand what you’re agreeing to. Even when it seems straightforward, there can be nuances to the law that you’re not aware of and that your husband may be trying to take advantage of. Don’t make this mistake.
For more information, or to schedule an appointment with one of our attorneys (maybe to go over an offer that you’ve recently received from your soon to be ex) give our office a call at 757-425-5200.