Should I negotiate my divorce?

Posted on Dec 11, 2023 by Katie Carter

Is settlement a dirty word?  I definitely think there’s a contingent of people who think that this is the case.  Settlement, after all, means compromise – and, in many cases, when you’re head to head with someone in a dispute as deeply personal to you as the terms of your divorce, it can feel a lot like you’re compromising on moral principles that are deeply important to you.

Not only that, but you probably also have a strong sense of what you are entitled to receive – or what you think you should be entitled to receive – because of the contributions you made to your family throughout your marriage.

On your soon-to-be ex’s side, there’s probably a lot of “principles” too.  Men – in general, in my opinion – seem hellbent on making sure that, whatever happens, they pay as little to their wives as humanly possible.  They almost treat it as a moral imperative.  It’s as if they don’t see all the various ways that their wives contributed to their success, grew their families, and managed their households.  It all comes down to money – what’s “his” and what he’s willing to share.

In divorce, though, there are only two alternatives – two paths that will ultimately lead you to your divorce and your happily ever after.

               You can either go to court and let the judge decide how to divide your assets, liabilities, and responsibilities between the two of you.
               You can negotiate between yourselves how you want everything to be divided.

That’s it.  Those are your only options.  Litigation or settlement.  So, which will you choose?

If you’re smart, you take a measured approach.  You want to know the advantages and disadvantages of each course of action, what the law entitles you to receive, where there’s wiggle room, and what an appropriate range of alternatives might look like.  Though you certainly have your own opinions about how things should eventually work out (if there’s any justice in the world), you’ll be willing to listen to the advice of attorneys, financial advisors, and others who might be involved in providing you guidance through your case.

Negotiation takes place in a number of different contexts.  One of the things that makes negotiation seem like a dirty word, I think, is the fact that in the context of many other types of negotiation, it is possible to win big.

Take a personal injury case for example.  You were in a car accident; the other driver was at fault.  You broke a bone.  You had to have surgery.  You had to go to rehab.  You accrued medical bills, lost time at work, and endured pain and suffering.  It took a long time before you were back to normal.  Someone should pay.

That someone – the person who caused the car accident – had insurance.  (Schwoo!)  When you sue him for causing the accident, you don’t sue him personally.   You sue his insurance company.  Because you’re not suing HIM, you aren’t limited to what he could pay out of his own personal pocket – which probably would not be much.  You’re suing an insurance company with access to literally millions and millions of dollars which, depending on the severity of your injuries and the skill and charisma of your lawyer, could be paid to you.

You could win.  And you’re already injured – so you want to win big, because, otherwise, you face the rest of your life in a diminished physical condition as a result of your injuries (after all, things rarely go back to 100% functionality; you’ll be compromised permanently) without any compensation at all.

If you litigate, you could win – you could win a lot, maybe.  Depending on the offer you’ve been given, it may be worthwhile to go to trial.  You could get more than is currently on offer.  Depending on your attorney’s perspective and the evidence, witnesses, and other exhibits you can offer, you might decide that, on balance, this is a smart move for you.  You might choose to go to trial.

In a divorce, though, there’s no insurance company with deep pockets.  There is only you, your husband, and the assets you already had before you decided to divorce.  When you go to trial – if you go to trial – you won’t be able to get MORE than what already existed prior to when you decided to divorce.  There’s really no mystery in terms of how much the judge will award you in damages; there’s no pain and suffering awards in divorce, either.  You have what you have, only now you have to split it.

On balance, it’s often not worth going to trial.  Not only will you likely not get more than your fair share, you will likely get less – because you’ll spend a significant amount of time and money on attorney’s fees.  While a personal injury attorney may take his fee out of your settlement – usually, to the tune of 25-45% – family law attorneys aren’t ethically allowed to work on contingent fees like this.  Family law attorneys work on retainers and bill hourly as work is done.

So, you’ll see those fees racking up.  And your husband, if you’re litigating, will be racking up his own, which are probably equal to yours.

I’m not opposed to making deals or refusing to make deals on principle; there is a lot of value in having a strong moral code and a sense of right and wrong.  Feeling that justice has been done is important to a lot of people.  But I do also think that there’s very little place for this in a divorce context.  If there’s nothing more to be gained, then you will only lose.  And the stakes are just too high to countenance losing too much.

Women are already, in many ways, at an economic disadvantage before and after divorce.  Though there may be reasons that you HAVE to go to court – like, if you don’t know the full extent of the assets and liabilities, he’s refusing to negotiate with you, or because he’s withdrawn all financial support from you – you don’t want to stubbornly refuse to settle out of a sense of principle.  Not in a divorce case, anyway.

Talk to an attorney.  Get a sense of your rights and entitlements.  Figure out what your specific goals are and work backward from there.  Then, set out on a course of action designed to help bring you as close to those goals as possible.

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