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,
* 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.