One conversation I find myself having a lot with potential clients lately is about the ground rules of their divorce negotiation. Specifically, I warn them that if they don’t agree on these ground rules when they begin negotiating their divorce settlement, then they will likely run into problems that will increase the time and expense of their divorce but do nothing to help resolve the legal issues.
We have ground rules for almost every kind of conversation in our lives. That is, we have a set of expectations about how that conversation will go. We have expectations about who will be involved, what can be said, how it can be said, when the conversation will happen, and almost every other facet of the conversation. And, when those mores are violated we are frequently offended. People who violate these conversations mores seem to us to be rude, selfish, obnoxious, dishonest, hurtful, and otherwise offensive.
We don’t have to think very hard to find a conversation or interaction in our recent past in which the other person violated some expectation or ground rule about how that conversation should have gone that offended us.
The conversations you have about how you will settle your divorce issues are perhaps the most emotionally charged, complex, and important of your life (and maybe the lives of your children). This means that the ground rules of your divorce negotiation become crucial to productive negotiation.
I frequently speak with prospective clients who are suffering frustration, anxiety, fear, or confusion because they have already begun some discussions with their spouse about their divorce settlement, but have not agreed on the ground rules in advance.
This often occurs in one of the following scenarios:
- One spouse presents the other with a “settlement offer”, “demand”, or “proposal” out of the blue
- One spouse hires an attorney without notifying the other in advance or simply utters the word “lawyer” early on
- One party takes a leveraged, adversarial stance right off of the bat
- One party assumes that they need to leave themselves “room to move” in the negotiation and presents an unreasonable “offer” early on
- One spouse starts talking in terms of what they or their spouse “deserves”, “is entitled to”, “should get”, or what they will and will not do.
- One spouse begins talking about “what the law says”
When this happens, the discussion is already headed down an unproductive path, and things will only get worse if there is not a discussion of the ground rules of the negotiation.
The problem is that each spouse typically enters the discussion (and the entire idea of divorce) with significantly different, but unspoken, ideas about how they are going to negotiate. One spouse may be very direct and positional, while the other is reticent and geared toward consensus building. One spouse may expect that they are going to move quickly while the other expects them to take their time in making important decisions. One may feel that lobbing offers and counteroffers at each other through attorneys is best, while the other expects to have a joint problem-solving approach.
These different expectations can derail your negotiation before it can even start. I frequently see spouses that scare each other so badly early on by violating these expectations that they end up in unnecessarily combative and expensive divorces.
Unfortunately, this also happens between lawyers. There is a lot of squabbling (and resulting legal fees) when one lawyer feels that the other has violated some expected ground rule in a case. Discovery motions and objections are almost always a result of this kind of squabbling.
The solution that I give these families is that they need to agree on the ground rules before they begin discussing the substantive issues in their case (e.g. custody, child support, alimony, equitable distribution). If you are not careful someone else, such as a judge or your attorney, will choose your ground rules for you.
Each kind of legal process has its own ground rules. Litigation ground rules are found in the Rules of Civil Procedure, Rules of Evidence, and Local Court Rules. Mediation and arbitration rules are also set out in the law. Attorney to attorney negotiation has some informal and unspoken rules, but they are not universal and are frequently the fodder for attorney spats.
In my experience, Collaborative Divorce has the most client-friendly, productive, and efficient ground rules of any divorce negotiation process. By signing a Collaborative Law Agreement, the parties and the attorneys are agreeing to play by these ground rules during the negotiation. These ground rules are designed to promote honesty, information sharing, respect, productivity, and efficiency.
Regardless of the process you choose, the conversation about ground rules needs to happen very early in order to be effective. So, if you are facing divorce, give some thought to what ground rules you would like to have in your discussions. Discuss those with your spouse. Hopefully, you and your spouse will be able to agree on the basic ground rules early, so that you don’t violate each other’s expectations. That way, you can spend your time and money addressing the substantive issues in your case and your actual solutions, and spend less time and money arguing over the negotiation rules.
