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Successful Divorce Negotiation

In my work as a divorce mediator, I often find myself needing to coach clients on how to negotiate.  So when they find themselves in negotiations that are emotionally charged, they often make many negotiation mistakes.   But negotiation is not complicated and many can learn quickly.  So, as I mediate, I often focus on the negotiation process itself.

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You can achieve a “good” divorce

Because divorce is generally regarded as regrettable and socially undesirable, we tend to think of all divorce as bad and destructive. Certainly, most of us have known people who have had bad divorces. These are the ones in which couples do so much damage during the divorce that they are left unable to cooperate, still angry at each other and unable to adapt to post-divorce life because they are still destructively engaged with each other. For these unfortunate people the divorce has been a failure because neither is free of the other and they continue to interfere with each other’s contentment.

So is there such a thing as “good” divorce? As in any human endeavor there is a range of performance and a range of possible outcomes. Just as there is bad divorce characterized by mutual self defeat, there is also successful divorce in which a couple has successfully negotiated a post-divorce arrangement that leaves both partners as well a s their children able to adapt to their new lives. The key to understanding good or successful divorce is an understanding that almost all divorces (99%) are resolved prior to trial by a negotiated settlement agreement. The negotiation of the agreement, also called the settlement agreement or the divorce agreement, can be regarded as the final task of the marriage. A settlement agreement resolves all economic issues between the parties and describes their mutual rights and responsibilities as parents. It describes how their property is to be divided .and resolves issues of child support and spousal support. Done well, the settlement agreement becomes the economic blueprint for the family’s future. Done well, the document represents the genuine agreement of the partners so that both view it with a sense of justice and goodwill.

There are seven characteristics of a good divorce.

  1. Emotional closure for both partners. This means that there is no unfinished emotional business and they have both disengaged from the relationship and the conflict.
  2. A successful post-divorce social life. Each has achieved a place in the community, or has developed a network of friends. If they are interested in a new relationship, each has begun to date or has found a new mate.
  3. A sense of economic justice. Both have a sense that the settlement was fair. This does not mean that one or both does not feel strapped from time to time, but that the disparity between them is not glaring or dramatic and neither feels victimized by the other, or by the divorce process.
  4. Basic trust. This means that neither has demonized the other and gives the other the benefit of the doubt when disputes arise.
  5. Communication skills. They can communicate effectively, and their style is conducive to cooperative parenting.
  6. Mutual goodwill. Each can wish the other well and support the children in accepting, if not liking, the other’s new mate or lifestyle.
  7. Conflict resolution skills and a mediation clause. Both came out of the divorce process with a reasonable capacity to settle differences themselves, or with the occasional assistance of a mediator.

Although some may think that this notion of a good divorce is unrealistic or naïve, I think it is within reach of the majority of divorcing couples. Bitterness is not a necessary part of the process of divorce. Sadness, anger, fear of loss and loneliness are, perhaps, inevitable. But the bitterness that poisons post divorce communication is more often the product not of the decision to divorce, but of the adversarial process still used by most people to get divorced. When divorcing couples feel humiliated and terrorized by each other’s lawyers they invariably hold each other responsible for the things each other’s lawyers have said and done. That anger so poisons the relationship between the parties, that it precludes cordial communication and mutual trust.

Good divorce is more likely for those couples that keep their contact with divorce lawyers and the court system to a minimum. Couples who insist on maintaining control rather that surrendering control to an adversary system are those who have the best prognosis for successful divorce. They are the ones who manage their strong feelings and don’t allow their own acting out to sabotage their futures. They approach the tasks of the divorce with a firm resolve to treat each other respectfully and to solve problems as efficiently as possible. Some couples can do this themselves. Others will need the help of a mediator. But most couples, when informed about the alternatives, can negotiate fair and lasting settlements.

Call me anytime you have any questions about North Carolina divorce law, custody issues, or separation and settlement agreements.  You are under no obligation and it would be my pleasure to answer your questions.

 

Sam Margulies
(336) 669-3141

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How you manage the beginning shapes the entire divorce

Most divorces are not decided mutually but are initiated by one of the partners who has reached the conclusion that the marriage cannot continue. This “initiator” has thought about the divorce for a long time, has had the opportunity to mourn the failure of the marriage and to begin to visualize a new life separate from the spouse. This partner is ready for the divorce and regards the losses associated with the divorce as outweighed by the advantages. The other partner, the “non-initiator,” may or may not be ready for the divorce. He/she may be resigned to the divorce and may agree that the marriage needs to end, or, may be absolutely thunderstruck be the revelation from the spouse and caught totally by surprise. The non-initiator is in a very different psychological space and needs time to come to grips with the new reality.

Whether you are the initiator or the non-initiator, how you manage the beginning of the divorce can shape the entire process. If you define the divorce as the result of your spouse’s terrible conduct or character you will have a mess. If you tell your spouse that the divorce is all his/her fault you will have a mess. And if you press your spouse to reach a lot of decisions that he/she is not ready to make you will also have a mess. If you use the divorce to try to vindicate all your emotional agendas of the marriage, you will have a mess. On the other hand, if you approach the divorce as the sad but unavoidable decision occasioned by the erosion of the marriage, erosion to which you have both contributed, you have a chance at a good divorce. If you assure your spouse that you will wait until he/she is ready and then negotiate in good faith, you have a chance of a good divorce. And if you minimize your contact with an adversarial court system, you have a chance of a good divorce. Mediation can help you do this.

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