Seattle Collaborative Divorce Attorney’s Guide to Negotiating a Divorce Settlement
A Seattle collaborative divorce attorney’s job is to help you and your former spouse negotiate your divorce settlement within the collaborative model. Collaborative divorce attorneys have been trained in mediation and understand the elements of negotiation, which will help you and your former spouse reach an out-of-court divorce settlement by helping both parties understand the law, and by using negotiation tactics and strategies to help you find the best possible resolution for your divorce.
In this article, our Seattle collaborative divorce attorney at Truce Law will guide you through negotiation tactics developed by business executives at the Harvard Negotiation Project alongside tactics used by an FBI hostage negotiator when lives were at stake. While lives may not be at stake if your divorce settlement negotiations fall through, our Seattle collaborative divorce attorney understands that a divorce settlement has the potential to shape your life and your children’s lives going forward, determining everything from alimony to where your children will live after your divorce. We take discussing a divorce settlement seriously.
Both Sides Benefit
The best thing about learning some of these negotiation tactics is that when both parties use these strategies, both sides benefit. We’ve all had to negotiate at one time or other—whether it is asking for a raise, buying a home or car, negotiating a business deal, or getting your children to bed on time. While emotions might play a role in all these negotiations, negotiations often involve two parties who want to maintain a good ongoing relationship with one another.
Negotiating a divorce settlement is a unique situation. With divorce, negotiation is required because the people involved are ending a relationship. Emotions may already be high, hearts already broken, feelings already hurt. Yet, by reframing divorce as a mutual decision to change the terms of your relationship, you and your former spouse may be able to move forward as healthy co-parents for your children, and move forward on civil, if not friendly, terms.
The key principles of negotiation can help you work out a fair divorce settlement during the collaborative divorce process. What are the key elements of negotiation? At the Harvard Negotiation Project, Roger Fisher and William Ury developed four key negotiation strategies, which they describe in their book, Getting to Yes: Negotiating Agreement Without Giving In. The four key strategies, when translated to negotiating a divorce settlement, can be summarized as follows:
(1) use objective standards;
(2) negotiate on values, not end goals;
(3) use empathy and mirroring; and
(4) use creative problem-solving.
Let’s explore each of these in depth.
Use Objective Standards
In the case of negotiating your divorce settlement, the laws regarding divorce in Washington will serve as your objective standard. Your Seattle collaborative divorce attorney can help you understand which aspects of your divorce are subject to objective standards, and which aspects of your divorce are open for negotiation.
For example, child support amounts are generally paid by the non-custodial parent to the parent who has custody. When child support cases go before a judge, the judge will use a special formula to calculate child support. Your Seattle collaborative divorce lawyer can perform calculations using this formula to determine a fair child support amount.
While some factors, like health care costs, day care costs, alimony, educational expenses, other child support obligations, and other children might impact how much you’ll be obligated to pay in child support, in general, child support is a fixed amount based on the number of children you have, the take-home pay of the person responsible for paying child support, and the take-home pay of the person who is receiving child support. The Washington State Department of Social and Health Services offers a quick child support estimator tool online. While this tool doesn’t include all the potential factors that go into a child support formula, it can give you and your former spouse a good idea of the child support that you may need to pay and the amounts you may receive as a custodial parent.
Custody agreements might seem open to parental preference, but “best interests of the child” standards can offer some objective criteria for working out a parenting plan that is fair and reasonable. In general, courts will look at what parenting arrangement puts the children in the best position moving forward. Who was responsible for most care taking activities and continuity in how the children are raised will be factors. That said, courts understand that divorce will lead to change and ensure that both parents have the ability to maintain a close bond with their children.
Base Your Divorce Settlement on Your Values, not on Specific Goals
Many couples enter a divorce negotiation with specific ideas in mind about what they want. “I want the house!” “I want $1,000 each month in alimony.” Divorcing couples often sit down to negotiate a divorce settlement with specific ideas in mind about what they want, but by doing this, they could jeopardize the chance of arriving at a fair and reasonable settlement from the start.
A better way to approach negotiations is to consider what you want (for example, the house, or the $1,000 in alimony) and then take a moment and make a list of why you want what you want. For example, if you want to keep the family home, think about why you want to keep the home. Is it because you believe keeping the home provides a measure of financial security? Are you attached to the memories you made in the family home? Do you want your children to attend the same schools?
Be specific. It can be helpful to take the time to see whether keeping the family home helps you achieve your goals. For example, if you keep the family home, will the expenses of maintaining the home on your own be cost-prohibitive? If you want to keep the home for sentimental reasons, are there other ways you can bring family traditions forward to a new home, or make new traditions?
If you want your children to attend the same schools, are there other ways to achieve this goal? For example, William Ury and Roger Fisher ask, “What does a spouse really want in asking $1000 a week in alimony?” If you can see that your spouse values security and recognition, it may be possible to negotiate a lower alimony amount if your spouse’s “need for security and recognition are met in other ways.”
This line of thinking can also apply to drafting a parenting plan. If you and your former spouse can both agree on shared values, you can draft a parenting plan that aligns with these values, and more readily see where your values diverge. This is where compromise and creative problem solving may be needed.
Use Empathy and Mirroring to Understand Your Former Partner’s Position and Values.
During divorce negotiations, emotions can sometimes run high. Empathy and mirroring can help you better understand your former spouse, while also diffusing potential conflict.
In Never Split the Difference, Chris Voss, the celebrated FBI hostage negotiator explains: “Listening is the cheapest, yet most effective concession we can make… By listening intensely, a negotiator demonstrates empathy and shows a sincere desire to better understand what the other side is experiencing.” Divorce negotiations demand hard conversations about difficult topics.
In Let’s Talk About Hard Things, Anna Sale writes “the chief skill in any hard conversation is how you listen.” Mirroring helps you listen better, but Sale adds that we can also “Notice their body language, or when their answers become short or clipped, and what makes them expand further. You are looking for clues about where you can push more, and what needs to be left for another time.”
Mirroring can also help you navigate disagreement. When your partner says something to you that you don’t agree with, rather than responding with anger and elevated emotion, first begin by mirroring back what he or she has said.
Here’s an example: If your ex-wife says, “I would like the children to attend church every Sunday,” even though your proposed parenting plan calls for the children spending every other weekend with you, you might mirror back: “You want the children to attend church every Sunday?” followed by a pause. This invites your former spouse to elaborate on why she might think it is important that your children attend church, and offer you clues about where your values might be shared or where they might differ—and where you might be able to reach a resolution.
Perhaps your wife values the children attending church on a weekly basis. Are there other days of the week where the children can go to church? Perhaps you also value church attendance and can take the children to church when they spend time with you? Or perhaps your wife never took your children to church and just wants to be with the children every weekend; perhaps she is making the request because she resists shared parenting time. By mirroring, and letting the other person speak, you can get a better understanding of the request, get to the bottom of the disagreement, and reach a resolution.
By using mirroring, both parties can empathize with each other. For example, you may be able to empathize with your wife’s grief over lost time spent with the children, or the loss of shared family traditions. Are there other ways to preserve or create new traditions? Even if you don’t empathize with your wife’s grief, it can be helpful to label it out loud. “It sounds like the idea of being away from the children every other weekend is difficult for you.”
The use of mirroring and empathy doesn’t guarantee that emotions won’t run high. If you find yourself angry or upset, you cannot negotiate. If this happens, it is best to take a time-out and step away from the negotiating table. Go get a coffee, take a brisk walk, phone a friend, and then return to the negotiating table when you feel calm and ready to speak and empathize.
Use Creative Problem-Solving to Brainstorm Solutions to Difficult Aspects of Your Divorce Negotiation.
Some of the most difficult aspects of a divorce settlement involve areas where the law is more ambiguous, namely areas where the objective standards are a little fuzzy, and where one or both parties may have fixed dollar amounts in mind. Alimony amounts, for example, are not decided based on formulas. And while Washington law calls for a just and equitable division of property, assets, and debts, the law doesn’t specify that assets, debts, and property be divided exactly right down the middle.
In situations like this, it can be wise to brainstorm solutions separately and together and bring them to group discussions with your Seattle collaborative divorce lawyer. Could alimony be offered as a lump sum? Could property be offered instead of alimony? Is there another solution altogether?
When dividing family heirlooms that may be contested, for example, the heirlooms can be put on a table, and each person can take turns selecting among the heirlooms in question. William Ury and Roger Fisher write: “In a divorce negotiation, for example, before deciding which parent will get custody of the children, the parents might agree on the visiting rights (and responsibilities) of the other parent. This gives both an incentive to agree on visitation rights each will think fair.”
Strategic Empathy and Negotiation
The strategies above are drawn from Roger Fisher and William Ury’s excellent book, Getting to Yes: Negotiating Agreement Without Giving In, but in tense negotiations, FBI hostage negotiators found that these strategies only went so far. Chris Voss, in Never Split the Difference, expands on some of these strategies. He recommends that negotiators use something known as “tactical empathy.”
Sometimes divorcing couples don’t know each other’s underlying values or deepest needs. Both people may know that they live radically different lives, and that the relationship isn’t working, but they may not be able to fully articulate what their former partner most deeply needs and wants, and this may be the source of great conflict.
A divorce settlement negotiation will work best if both parties and the collaborative divorce attorney’s involved understand each side’s deeper values. The best way to do this is to listen closely when the other side asks for something you don’t want to give.
To listen closely, Voss suggests that you “repeat the last three words (or the critical one to three words) of what someone has just said” followed by a pause to let the other person keep speaking. Proceed slowly. Keep doing this until you feel you fully understand the other side’s feelings and their position on the matter. Then, and only then, do you deploy Voss’s second tactic for strategic empathy.
He explains it like this: “We spotted their feelings, turned them into words, and then very calmly and respectfully repeated their emotions back to them.” Notice that this tactic doesn’t require that you agree with your former spouse, just that you show him or her fully that you see where he or she is coming from. Voss explains that you’ll know you got your summary correct when the other party says, “that’s right.” If the other person says, “you’re right,” you’ll have to start over with the mirroring, because with “you’re right” the other person still likely doesn’t believe that you understand them yet.
Voss offers some other tips that could help prevent a blowup (literally and figuratively). If your former partner makes an alimony offer that is way too low, or offers a divorce settlement idea that doesn’t work, simply say: “How am I supposed to do that?” and offer a long pause. This encourages the other side to think about your position and gives him or her space to offer solutions that may work.
When making an offer, you can also defuse conflict by naming some of the “worst things that the other party could say about you” and your offer. For example, “You’re going to think that I’m being cheap, and this is certainly less than you expected to receive, but I can only pay this much in alimony.”
Voss also recommends that you make a list of items or concessions that the other side might find valuable that you are willing to offer. Not all these concessions need to be monetary. For example, agreeing to let your children spend Christmas day with your wife’s family may matter more to her than that extra hundred a month in alimony you don’t want to pay. “You’ll be tempted to concentrate on money, but put that aside… a surprisingly high percentage of negotiations hinge on something outside dollars and cents. Often, they have more to do with self-esteem, status, autonomy, and other nonfinancial needs.”
By keeping some of these negotiation strategies in mind, you can maintain the peace while you negotiate your divorce settlement and make it more likely that you and your former spouse will find a resolution that works for the both of you. When you mix heartbreak and anger alongside financial matters, the stress of moving or dividing property, all while making decisions about how you’ll co-parent your children, it is understandable that emotions can run high. The collaborative divorce attorneys at Truce Law can help you with your divorce settlement using tactics from the art of negotiation.
Let’s quickly review. When negotiating your divorce settlement with the help of your collaborative divorce lawyer, you’ll want to base your negotiation on objective standards, use mirroring and strategic empathy to understand where the other side is coming from, base your divorce settlement on values rather than specific goals or fixed dollar amounts, and finally, work with your collaborative attorney to brainstorm solutions.