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How to: negotiate your divorce settlement

16 April 2007

NegotiateIn big money cases, people never usually settle for the first offer and neither should you, says Neasa MacErlean.

If you have ever bought or sold a house, you probably have some idea at least of whether you are comfortable at negotiating. In retrospect, most of us tend to think we lost out here and there because we did not say the right thing at the right time. If this is the case with regards to your house purchase, you’ll shudder to think how the stakes are much higher in divorce. All your assets are up for grabs, your income, custody and care of the children and, in many cases, the outcome can determine your quality of life for years to come. We’ve spoken to negotiating experts to offer you a few pointers…


1. Recognise that your aptitude to negotiate may be deeply shaded by your role in the split. “The person who feels they are the injured party tends to do better out of it,” says financial adviser Garry Spencer of Wilbury Financial Management. “The one who wants to get away is the one who tends to give more.” Even if you’re the one who has had the affair, remember that you are still entitles to your fair share of assets.  If you give it all away now you’ll regret it years later.

2. Don’t think that the simple answer is to be tough. In many of these cases, what goes around comes around. Gloria (not her real name) got the lion’s share of the assets in her bitter divorce settlement (including 75 per cent ownership of the house and, consequently, no need to work while her ex ended up in a small flat and needing to work overtime). He was so infuriated by her attitude that his lawyers wrote in a clause banning her from having adult male visitors to the house while the children are under 18. She does have sex with a companion – but in her car.

3. Don’t be overly generous.
Family mediator Mairead McKeever of Harmony Mediation has many times seen ‘the client who wants to give everything away’. “These cases concern me as the deal you make now provides the platform on which to build the rest of your life,” she says. Someone who is depressed and disengaged now and, therefore, willing to walk away with very little will nearly always, at some stage, recover. But, in the meantime, they set back the timing of that recovery by having a reduce wealth, living in ugly surroundings and allowing their self-confidence to be battered.

4. Understand the main aim of good negotiating – ‘win-win’ solutions.
This does not mean getting as much money as you can, but understanding what matters most to you and what matters most to your ex and then trading in these areas. The best solutions often hinge on details and come from the parties themselves and not from their advisers.
For instance, Jane might want to restart her acting career. If her ex, William, is flexible in looking after the children at short notice and Grandmother (who loves seeing the kids anyway) agrees to take them on Mondays, Jane has a good chance of going to auditions and weekend acting courses. William – self-employed and with a variable income stream – will give her a bit more in maintenance for the first few months but they agree that, within a year, she should be earning and his contribution should be reduced. In this example, the couple have a) focused on achieved the best lifestyle for both of them (and their family); b) let the money and assets follow their lifestyles rather than the other way round (the much more common approach); and c) created between them that level of mutual trust which transforms relationships (and which, very importantly, can be drummed out of settlements set up by heavy-handed lawyers).

5. Recognise that the very first step towards productive negotiating is to move yourself and your ex away from a state of emotional heat and into rational, positive, imaginative discussions. “The aim is to see and run it like a calm negotiation and look at the numbers and the variables,” says negotiating consultant John Mattock, director of Right Brain Training (see www.rightbraintrain.org.uk). If your ex is a monster and used to getting what they want by throwing tantrums, they will prefer to stay angry rather than calm – but this could well be an affectation. Always try to stay calm yourself (easier said than done, we know). If you keep trying (and ignoring the tantrums), you may get them to be calm for parts or even all of the settlement negotiations. Watch out for the areas they get particularly heated about: this is what matters most to them. Also, watch their self-justification process. Before doing something unfair, most human beings try to find a justification first (‘I deserve the house because I spend more of my time there than he does…’). Getting a third party involved to mediate (by looking for a mediator via, for instance, the British Association of Lawyer Mediators – call 07000 766 422 or visit www.lawwise.co.uk/balm) can make life easier.

6. Concentrate on the facts and figures in your own preparations to negotiate. If you can use a calculator you are at a massive advantage over someone who cannot. Similarly, if you research the law, house prices in your area, methods of valuing pensions and other topics which might seem dull or difficult you give yourself a great head start over an ignorant, lazy or arrogant ex. Discuss your proposals with a trusted friend or two. Remember that no one (however intelligent) is so good at negotiating that they can do it well without a sounding board. There will nearly always be options you have not thought of, interpretations of responses from your ex that you have not considered and better ways of phrasing your proposals to your ex. Consider conducting your negotiations by email or letter – so you know exactly what is being proposed and have time to reflect.

7. Work out your desired outcomes and bottom lines.
Do not give these away without careful thought to your ex (particularly if your ex is unscrupulous). Expect to make some compromises along the road – but not too many.

8. Be careful about handing over your affairs to lawyers.
People who have been through divorces with lawyers tend to say that solicitors can polarize the parties.  Also, do not expect professional advisers to be good all-rounders. By and large, accountants are not that good with words – and lawyers often make mistakes on calculations.

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For more divorce help read articles in our legal section.
For more divorce help read articles in our relationship section.

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