Episode 53 Transcript: Changing Your Mind in a Divorce Negotiation

In this episode, I wanted to speak briefly about something that comes up commonly in a divorce negotiation, which is that one or both of the parties changes their mind on something that they have talked about and agreed on as part of the process. 

Let me first distinguish between changing your mind after you’ve signed the agreement and before you’ve signed the agreement. 

After you’ve signed your agreement, if you’ve changed your mind about something that is in the agreement, it is extremely difficult to change ,and the advice I want to give you is just to talk to your attorney about it at the time. Generally speaking, the agreements you’ve made around dividing your assets and debts and even around alimony or spousal maintenance are really pretty darn hard to change. There’s got to be some kind of major, major, major catastrophic thing that happened or you discovered that someone hid $5 million in a Swiss bank account to enable you to change your mind about how you have agreed to divide assets and debts or how you have agreed to structure alimony or spousal maintenance.

With regard to your parenting schedule, with regard to child support, in particular, if there have been changes in your circumstances, financial changes, changes in your kids’ lives, changes in your lives, maybe you would be able to change your mind successfully and change the terms of your agreement, but it’s far from guaranteed once something has been put in writing and signed. And so you just really need to go back, either if you’re in mediation, to your mediator and/or to your attorney to talk about what your next steps are, what your options are if you’ve changed your mind about something once you’ve signed the agreement.

The other period during which you can change your mind and more successfully is before you actually sign the agreement, so during the negotiation process. 

And this happens not uncommonly. It’s also not without its drawbacks or challenges. And that’s what I want to talk about a little bit. 

When you are negotiating a complex agreement, a host of different terms as part of your divorce settlement agreement, you have to discuss the terms in some order. It’s impossible to agree on everything, in principle, at the same exact time. You have to start somewhere. 

When you start discussing a certain topic, it’s natural that you may come to a point where you think you have an understanding of how you’re going to settle that particular topic. Let’s say it’s one of ten substantive topics that you need to resolve as part of your settlement negotiation. 

And when you have made a tentative agreement, it’s not legally binding but you said, “Okay. I think this kind of parenting schedule is going to work for us. Let’s move on to other topics,” to later come back and say, “You know what? On second thought, I actually don’t want to do that parenting schedule,” it’s challenging because psychologically, when you have agreed to it verbally, in principle, it feels like you are taking something away. This is assuming that you’re asking for a change that is something that you want and something your spouse doesn’t want. 

Obviously, if you want to make a change that your spouse wants and you’re not so in favor of, you’re always free to do that without problem. 

But psychologically for your spouse and your spouse’s attorney, even potentially the mediator, less so, it feels like you’re taking away something you gave and that you’re taking it away without giving something in return, so it can feel unfair. 

And if there’s no clear precipitating event, like there was no big emergency that occurred while your spouse had the kids with him or her that caused you to feel like “You know what? I don’t think 50/50 time is going to work for us because XYZ happened. This is new information that I didn’t have before when I agreed to a 50/50 schedule and this changes my thinking about it.”

If you can tie the change in your opinion to some kind of information that you didn’t have before, some new behavior or fact or circumstance that has developed since you made that agreement, it helps to make your change of heart seem more understandable, more logical, and less arbitrary, and thus more “fair.” 

It’s not to say that it’s wrong to change your mind. It’s not. And I think if you really do feel strongly, if you have a strong change of heart, you need to say it because once you sign the agreement, you should consider that written in stone. Obviously, talk to your attorney at the time if you want to try to change it down the road. But really consider that it’s something that’s written in stone. So if you have a strong change of heart, you need to speak to that in the process. But it is, psychologically for the parties in the negotiation, it’s a challenging thing to do without a really clear justification for it.

That said, by the way, it may already be the case that your spouse and your spouse’s attorney perceive you as acting completely unfairly and arbitrarily in the process or not, so I don’t want you to feel like you have to contort and sort of restrain yourself so that your ex and your ex’s attorney think that you are a fair person because you don’t have control over that, and they may not think that anyway. But I just want to sort of forewarn you that changing your mind is not an easy thing to do once you’ve said tentatively that you agree to something.

Let me give you just two tips that I think can sort of ease the potential of changing your mind in the future or ease that when it happens and put you in a sort of better place for negotiating if and when that does happen. 

The first piece of advice is don’t say yes to something in the moment. Unless it’s literally your ideal resolution, like your dream is 50/50 parenting, that would be your ideal, and that’s what’s being offered, of course, say yes. But if it’s something that’s not your absolute ideal resolution, which most things will not be in this process, don’t say yes in the moment. 

You need to say that you’re going to take time to think about it, that okay, you appreciate the suggestion. You can see where he or she is coming from. Ask questions about it. And just say like “I know for myself that I am not able to process this fully in the moment, in the session. I need time to think about it on my own. I definitely want to have time to talk to my attorney about it.” 

That’s if you’re in a mediation. Obviously, if it’s going through attorneys, you’re going to get all the time that you need to consider it. But if you’re either speaking directly with your spouse, not in a mediation or with your attorneys, or you’re in a mediation or a collaborative process and suggestions are being made in the moment, I encourage you, if you have anything less than 100% certainty that you love that suggestion, to say that you really need to think about it and process it a bit more. 

Ask questions about it. Get clarification as to anything you’re unclear on. And then take your time to process it so that you’re not setting yourself up to say, “Yes, that works for me,” and then in the very next session, you’re coming back and saying, “You know what? I gave that some more thought and that doesn’t work for me.” 

If you need to do that and that is what happens, by all means, you should speak up in the next conversation with your spouse and say, “I gave it more thought. I’m sorry that I answered quickly, but actually that doesn’t work for me.” But better would be to not say yes to begin with, give it some thought, and then either say yes or no or maybe after you’ve given yourself some good time to consider it.

The second suggestion I want to make is that when you come back and say yes to something, this is implicit, I think, in any agreement and ongoing negotiation, but you can make explicit that like “Listen. I know that we’re negotiating a lot of different topics, and we can’t do that all at once, but I just want to say that this proposal, this resolution, this particular thing we’re talking about, this is not my ideal. This would not be how I would like to have our parenting schedule be,” or “This doesn’t seem like enough spousal maintenance to me. I’m tentatively willing to consider it and willing to table the discussion for now pending how everything else resolves itself. If we can figure out all the other issues in a way that we’re both comfortable with, I think I could be comfortable with this. But I just want to be clear that in a vacuum, this is not my ideal resolution,” or even “This doesn’t feel super workable to me, but if we could figure everything else out, I think I could make it work.” 

Framing it like that puts your spouse, puts the mediator, puts your spouse’s attorney on notice that, look, you were okay with that amount of spousal maintenance, but then you assumed you guys would be able to come to an agreement on a parenting schedule, and in fact, you haven’t been able to do that. And if the parenting schedule is going to be totally different, you’re not okay with that amount of spousal maintenance. 

So it’s sort of like just putting a little flag or a little pin in that issue and saying, “If we’re able to resolve everything else, I think I could work with this. But I just want to be explicit about what I know is implied already, which is that this is not my ideal and we’d have to be able to resolve everything else in a way that works for me for me to agree to this.”

That is our summary of what happens when you change your mind during the divorce negotiation process as well as a few tips for how to both minimize the likelihood that that will happen to you and also to minimize the detrimental impact on your negotiation process if it does happen to you.


Episode 54 Transcript: Interim Agreements

Episode 52 Transcript: Communicating Directly With Your Spouse