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Hi, everyone, and thank you so much for tuning in to The Divorce Field Guide. My name is Ani Mason, and I’m a divorce lawyer and mediator, and I’m also the creator of this podcast.
Today we’re in Episode 3, and we’re going to be talking about the different ways that you can negotiate in a divorce. In Episode 2, we talked about the nature of negotiation and looked at how a divorce, in essence, is a negotiation process. And we talked about the importance and the value of learning a bit about negotiation, of studying it a bit, to improve your skills at it so that you can do as well as possible in your divorce.
TYPES OF DIVORCE NEGOTIATION
Before I talk about the different divorce-specific ways to negotiate, I want to just say generally something that I think you already know, but I want to make it explicit. Outside of the context of divorce, there are different ways to negotiate any point with a particular person.
So, you can negotiate something...let’s say you’re buying a car from your neighbor. That negotiation over the terms of sale, probably mostly over the cost of the car, is likely to be something that happens in person, between the two relevant parties directly. I doubt you’ll send an emissary or a representative over to your neighbor’s place to negotiate the cost of the car you’re thinking of buying.
So, there are types of negotiation that happen directly between the two people involved and in person. There are other kinds of negotiations, and here I’m thinking about maybe negotiating an improvement to your cellphone contract or your cable contract with your cable or internet provider. That’s likely going to be something that would happen by phone. It’s not so formal that you’ll be sending a letter or negotiating in writing. Most likely, you’re talking with customer service, and you’re doing that by phone.
And then finally, there’s a lot of negotiation that takes place in writing, and that can be, for instance, and we’ll talk about this later, in a negotiation of a settlement of a court case. A lot of traditional negotiation would take place in writings, often letters, exchanged between attorneys or representatives of the people involved in the conflict. Or, negotiation could take place in writing via text message between you and your friend negotiating about what you plan to do on a particular weeknight, or where you’re going to go for dinner, or whatever the subject of your informal negotiation is. My point is basically that there are a lot of different structures for negotiating, and that’s not specific to divorce.
Within the context of divorce, the structures get a bit specialized and maybe more detailed – or we can share more detail about how they work – but it doesn’t change the fact that there are different ways of negotiating, and different ways of negotiating are more appropriate to different situations.
What I want to recommend to you as a general matter is that you think about, as you come to understand the different ways of negotiating your divorce, that you give some thought to which way is most likely to benefit you. That’s what we’re going to be talking about in this episode. We’re not going to have time in just one episode to cover all the different ways that you can negotiate in divorce. (By the way, I will also be referring to those ways as “divorce processes” or “divorce process options”.)
HOW YOUR NEGOTIATION IMPACTS YOUR DIVORCE
Let’s talk about why it’s important to choose the right divorce process for yourself. In essence, that’s because the process of your divorce not only impacts your experience of the divorce, but it is also very likely to impact the outcome and the ultimate resolution of your divorce. As we’ve talked about in prior episodes, your divorce is covering some of the most important topics in your life—your family, your kids, your finances. So, to the extent that the process, the divorce process that you choose, or the negotiation process that you choose, for your divorce can positively or negatively impact the ultimate resolution of your divorce, it’s a big deal what process you choose.
As I was thinking about the impact that your divorce process has on your divorce, I was thinking that it is not dissimilar to the choice of college that you attend. In many respects, any college you go to will spit you out in the same place, that is with an undergraduate, with a bachelor’s degree. At a very general level, most of the colleges that you go to will give you a BA, so what’s the difference? But of course, as you know, if you fretted over the choice of college for yourself or for a child, when you dive into the world of college choice, there are vast differences between what your experience would look like if you chose to go to a very small private school in New England versus going to a very large public university in the Midwest versus going to a small private school in Southern California. Your experience at those different places will likely be different, and, in fact, your different experience, the different people you meet there, the different classes that you take, might actually lead you to a different result at the end of your four years.
It's not to say that if you went to one school you would study film, and if you went to another you'd become a doctor, and a third, you would become, I don't know, a mathematician. Maybe. But, you know, probably not. Who you are and the circumstances of your life and your interests to the point that you go to college are going to have a massive influence on what your experience of college is like, regardless of what college you choose. And that is true in divorce, as well.
Who you are and who your spouse is and the circumstances of your relationship, your history, your divorce or the breakdown of your relationship, those are going to have a big impact on your experience of the divorce process. It's not to say that, no matter what your circumstances, if you just choose the right process, all will go well, and if you don't choose the right process, all will go badly. That's not the case at all. You really are the biggest impact—you and your spouse together – on your process. But, choosing the right divorce process can have an added positive impact, and given the importance of the topics that a divorce negotiation covers, having that added positive impact is a really good thing.
PHASES OF DIVORCE
One more thing before we talk specifically about divorce process options, and that is just to review the basics of a divorce process.
Think of a divorce process in three separate phases. The first phase of your divorce process is the identifying and talking through of the various different issues that you need to resolve as part of your divorce. I think of that as the negotiation phase.
The second phase of your divorce process is taking the agreements that you've made informally as part of your negotiation, phase one, and reducing them to a formal legal contract, and committing to them, obligating yourselves to them, through that legal contract. I think it's fair to say that the negotiation continues through, it's not just in phase one, it definitely continues through the drafting of your legal contract. But I like to think of the bulk of the negotiation in your divorce as happening in that first phase, where you're really discussing and working through the issues.
I also want to flag here that depending on the kind of process that you're in, you may do more of your negotiation after an initial contract is drafted. I know that sounds a little bit funny, and we'll talk about that more in depth as we talk about each of the different divorce processes. If you are in a mediation or a collaborative law process, which are the processes that I focus on, you negotiate your terms upfront, initially, you work through the issues, then you draft a legal contract when you have clarity about what you want it to say.
Finally, when you have a contract drafted and signed and you want to move to formalize your legal divorce, you submit your contract, with a bunch of different paperwork, to the court, which then issues your divorce.
At the end of the day, when we talk about the different divorce process options for you to consider, we're really talking specifically about how you're going to structure the negotiation phase of your divorce.
DIY DIVORCE: OVERVIEW
So let's go ahead and get started talking about the different divorce process options. I'm going to start with one that is uncommon, and I'm doing that because, in some ways, I think of the different divorce process options as along a continuum, going from absolute minimum involvement of anyone other than the two divorcing spouses to, at the other extreme, maximum involvement of attorneys, of the court, of third parties basically in your divorce.
This first option, which used to be called the “Kitchen Table Divorce,” I think now that we're in the 21st Century, “DIY Divorce” rings more true for me. But the gist is that this divorce option, the DIY Divorce, is basically a negotiation process in which you and your spouse are working with each other and no one else. As you can imagine, for obvious reasons, that can be tough to pull off successfully, but it's not impossible. So I want to just talk you through some of the details of it, and give you a better sense of who’s involved, who talks to whom, what does the process look like, how much court involvement is there, how does the drafting work of your ultimate agreement and what are some of the pros and cons involved with DIY Divorce.
DIY DIVORCE: WHO’S INVOLVED & WHO TALKS TO WHOM
Basically, a DIY Divorce is you and your spouse, are the only people involved, if it's a true DIY Divorce—just you and your spouse. That means that it falls on you and your spouse alone to, number one, identify the different legal issues that you need to discuss, and number two, successfully talk through and resolve those issues together.
Now, that may happen in person. It could certainly happen in writing, whether it be, unlikely through formal letters, but whether it be through email or even through text message for some issues. But there are no third parties – no neutral third parties, like a mediator or a judge, and no third-party advocates, like attorneys – to help you either identify what issues you need to cover, or understand the law as it applies to those issues, or help you actually have the discussions to work through and resolve the issues that you've come up with. As the title suggests, DIY, you're completely doing it yourself. You are not using any other professionals to help you.
DIY DIVORCE: WHAT HAPPENS WHEN YOU AGREE
Assuming that you are able to come to agreements on all the issues that you've identified as wanting to cover, I am not sure how you could draft a legal separation agreement or a legal contract if one of you was not a matrimonial attorney. (Honestly, if one of you is a matrimonial attorney, I do not recommend that you DIY the divorce with the other spouse unrepresented. Maybe if you're both matrimonial attorneys, you can DIY your divorce.) But other than that, quite frankly, I don't know how you would have a contract drafted without having a matrimonial attorney, whether they be neutral, in the role of a mediator, or as advocate hired by one of you, without having that person draft the contract.
That's not to say, technically, that you can't still get divorced. You could, in theory, come to agreements with your spouse, and without a contract, you could attempt to go through the uncontested divorce process in your state, which typically involves the submission of paperwork rather than multiple in-person court appearances.
DIY DIVORCE: LIKELIHOOD OF TIME IN COURT
In a DIY Divorce, you still have little to no likelihood of spending time in an open-court session. If you truly are not working with anybody else, you will be spending some time in court because you'll have to go to court, or at least spend some time on your court’s website, figuring out what documents you need to file, and how they need to be filled out, and trying to navigate how to say what you want to say about the different resolutions you've come to, how to say that, in the divorce documents that are specific to your state.
DIY DIVORCE: PROS + CONS
As you can imagine, there are some upsides and downsides to taking this DIY approach. There can be a real upside to not involving divorce professionals in your case. I think that the upside for many people, first of all, if it works, there's an obvious financial upside because you're not paying at a high hourly rate to a third-party professional or professionals to help you with your divorce.
But I think there's something that goes beyond the financial component, which is more of a recognition of how divorce professionals can often negatively impact the dynamic between you and your spouse and can sometimes add to the conflict between you. So, for many people who are drawn to a DIY Divorce process, I think they are apprehensive about the impact that working with divorce professionals could have on their divorce and are really loathe to lawyer up and to polarize their divorce process by involving a bunch of divorce professionals in it.
What I will say is that a DIY Divorce process is only inexpensive for you if it works. By that, I mean that divorce covers a lot of complex subject matter, and it involves very complex interpersonal dynamics between you and your spouse. So, it is not the easiest arena in which to negotiate. It's really not. That can be both because there may be numerous legal issues that you ought to cover that you're not aware of. For instance, speaking to different child-related tax benefits might not be the first thing that comes to your mind when you are talking through various divorces-related issues with your spouse. But, in a thorough divorce process, if you have kids, you address that in your divorce negotiation and in your divorce agreement. Even if you know every single legal issue, it's still not easy to talk through some of these issues with your spouse. This is the same person that you’re divorcing, and so, obviously, the communication dynamic is complex.
Finally, I would say even if you have a terrific relationship, very amicable, easy for you to communicate, divorce covers a lot of complex financial and tax-related and trusts and estates-related terrain, and it would be strange if you knew all of the various financial and tax and estate-related implications of the decisions that you and your spouse are talking about in your divorce.
My point is that without communication with any professional throughout your divorce process, you could get stuck in a roadblock and get stuck around your communication, but you could also miss some important things.
WHO IS DIY DIVORCE RIGHT FOR?
So I would say that a DIY Divorce could be appropriate for very, very simple, very amicable divorces—maybe. But, keep in mind that what you don't know can hurt you in this process. Even in what seem like the simplest of cases, I would still recommend that each person or maybe together, you both, have at least one consult, with a divorce professional, whether they be neutral like a mediator, or with a divorce attorney, so that you can get the most basic lay of the land before you try to DIY your own divorce.
With that, we're going to stop for today. In the next episode, we will cover two divorce processes—mediation and collaborative law—that are close to the DIY end of the spectrum in that they do not involve you spending any time in court, and they’re amicable and settlement-focused approach to divorce, but they do involve your collaboration with some divorce professionals. A little bit more of a third-party involvement than a DIY Divorce, but not as much as you might anticipate in a litigation or a settlement negotiation process. We'll talk about those as well, most likely two episodes from now.
Thank you so much for tuning in, and I will look forward to speaking with you in Episode 4 of The Divorce Field Guide.