BARGAINING IN THE SHADOW OF THE LAW
You have decided to divorce, have chosen a lawyer or have decided to represent yourself, and have gathered necessary information on the family’s economic situation. What happens now? Usually negotiations. This is not a totally new skill you have to learn. We negotiate every day. Those who have children know that a normal three-year-old is an instinctive negotiator for the important things in life — staying up another ten minutes, not eating the carrots until you promise candy, and so forth. we each bargain and attempt to persuade in just about every aspect of our relationships with other people, and we also do so when we divorce.
In divorce, what do you negotiate? Potentially, everything. Who pays whom and how much? Who gets the house? Who get custody of the children and who pays for college?
Except for those who ignore or boycott the divorce process, the economic, custody, and support issues in nine out of ten dead marriages are settled eventually by a private bargain between the divorcing spouses (often through their attorneys) rather than by a judge’s decision after a full-scale trial in court. Settlement is highly probable unless one or both parties persist in being unreasonable, spiteful, or determined to prove that he or she alone is “right.”
The negotiations leading to agreement may take a week, they may take two years, or they may take even longer. The process may be businesslike and polite or it may be noisy, bitter, and interrupted by frequent tips to court. The husband and wife may do much of the bargaining directly, using their lawyers as advisers and draftsmen, or they may leave all of the face-to-face negotiating to the attorneys. They may use a mediator to assist them in their own direct negotiations, as described in chapter four. The bargaining may be completed before a lawsuit for divorce is even started; sometimes the parties do not settle until they are in the middle of a contested trial, after years of fighting. But the odds are that your case will in some way, at some time, be settled by you and your spouse rather than by a judge after a trial.
Many divorce judges, before and even during a trial, strongly encourage the couple to reach their own settlement and thus conserve court time. The judges recognize that the lawyers, who may have represented the parties for two years or more before trial, know much more about their clients, the clients’ needs, and their resources than a judge will learn in a trial. A settlement drafted by the lawyers is therefore more likely to maximize total benefits than is a judge’s decision.
In this chapter you will find basic information about negotiation techniques and strategy in divorce cases. There is an excellent Yale Law Journal article by Robert Mnookin, titled “Bargaining in the Shadow of the Law: The Case of Divorce.” That title concisely states what a divorce case is often about, particularly where there is substantial property to be divided.
Divorce negotiations are “in the shadow of the law” in the sense that they are shaped partially by the parties’ estimates of what a court will do if no agreement is reached and the case goes to trial. For instance, until 1995 the Texas divorce law provided that one spouse had no right to receive alimony from the other spouse after a divorce. The financially weaker spouse, therefore, had a very weak bargaining position when asking the other spouse for financial help, even if he/she was rich and the other had difficulty supporting himself. If a spouse refused, the Texas courts could not help, since the law could not require anyone to pay alimony
Under present Texas law the court can require either spouse to pay maintenance (the term for what used to be called alimony), depending on the facts of the case. That gives the spouse who has difficulty supporting himself more bargaining muscle. If the financially stronger spouse refuses the request for support, one spouse can force the case to trial and the judge will have the power to order maintenance.
So as we negotiate we look over our shoulder at what the court will do about property, maintenance, child support, and custody if you and your spouse do not reach a negotiated settlement. Obviously you need information about what a court would likely do if there were a contested trial. Your lawyer is your obvious source for those predictions. Most of the rest of this book focuses on giving you a general knowledge of the legal principles that courts use in deciding divorce cases and that your lawyer uses in predicting outcomes. That knowledge will empower you to participate more fully and more creatively with your attorney in negotiations. This chapter focuses on conventional adversary negotiations rather than the softer, problem-solving type negotiations, emphasizing the parties’ emotional needs discussed in the chapter on mediation. The theory and technique of your own negotiations probably will be a blend of the two. Further, purer forms of both types of negotiations may be appropriate at different stages of the same case.
You have already listed the property you and your spouse have accumulated, itemized your income and expenses, and gathered other facts your lawyer requested. Now think of what you most want in a negotiated divorce settlement. Your initial answer on maintenance and child support and property may be “As much as I can get” or “As little as I can give,” depending on your situation. Or it may be “I just want a fair result that ends the marriage and allows me to get on with my life quickly.”
Perhaps you can be more specific. If it is already agreed that you are to have custody of the children, sole ownership of the house may be very important to you and for your (and the children’s) emotional and financial security. You may need a high income for a few years until you complete your work for a graduate or professional degree. You may have a business that you want to protect from your spouse. Your most important need may be quite narrow: we once represented a woman whose first priority was protecting her job with a large company that her husband’s friends owned and her husband operated. She had worked there for many years and her job gave her much personal satisfaction. Her age and background made it very difficult to move to as good a job with another employer, so she wanted to stay in her position even though her ex-husband would be her boss. We negotiated a deal that made it risky for her ex-husband to have her fired.
Look at your emotional attitudes toward the divorce and toward a negotiated settlement. Clients occasionally say things like “If you don’t see that Jim is a horrible person, you aren’t on my side.” You may believe that your spouse is a miserable so-and-so, and by some objective criteria that may even be true. but if you feel you should use the divorce proceeding to punish your spouse for all of the bad things he or she has done to you, my strong recommendation is that you look at the costs of doing so.
YOUR ATTORNEY’S JOB
Your attorney should know your state’s divorce law, his or her way around in divorce courts, and the facts of your case. Using this knowledge he or she may predict for you what a court is likely to do after a trial. These predictions are often very difficult to make early in the case, for several reasons. First, the statutes defining what is divisible property at divorce, which involves the dissolution of a couple’s economic partnership, have changed substantially in many states over the last few years. It is uncertain how the courts will interpret and apply many of those legislative provisions. Second, the statues are complicated and often give the trial judge enormous discretion and flexibility in applying the law to the facts of an individual case. Third, your attorney may need time for a detailed investigation to gather important facts about your spouse’s property and income or about how best to structure the custodial and visitation arrangements.
If you are doing your own negotiating you need whatever predictions your attorney can give you before getting into the custodial or financial aspects of your divorce. You also should get his or her advice on negotiating strategy and tactics. If your attorney is doing the negotiating you should discuss what you most want in a settlement, given the attorney’s evaluation of what negotiating leverage you have. Whoever bargains, both you and your spouse should be clear on what your negotiating objectives and priorities are before starting the process.
YOU AS A NEGOTIATOR
In our experience strong, rational client involvement in the negotiating process usually leads to better agreements because the client’s preferences are more fully incorporated in the deal. You know what your needs are better than your attorney does. It’s your life, and you should participate in the choices necessary in dividing property, in setting maintenance and child support, and in all other aspects of terminating the economic partnership that is part of your marriage.
We sometimes encourage our clients to negotiate the basic terms of divorce settlements directly with their spouses. This works best where there is approximate equality between husband and wife in bargaining ability and both want to reach an agreement. Many clients, particularly women, come to us wanting a champion and protector and do not feel inclined or equipped to participate directly in negotiations. We, of course, respect their wishes and do the negotiating personally, with frequent consultations with the client. Even when appropriate, direct participation in negotiations does not mean that the client writes the agreement or negotiates all of the details. The settlement agreement, particularly where large amounts of property have accumulated during the marriage, will be complicated, technical document requiring good legal drafting. The husband and wife often can define the broad outlines of settlement for themselves — who gets custody, who gets the house, how much maintenance and child support will be awarded. After each discussion the couple has, we confer with our client to evaluate whether the tentative results of the negotiations are reasonable and to suggest additional issues that need to be resolved.
ANALYZING YOUR SPOUSE
You and your lawyer have discussed your wants and needs and the strengths and weaknesses of your case, and you are emotionally able to move toward a negotiated settlement. Now you should listen carefully as your spouse communicates his or her needs and analyze what you have that your spouse most wants. The idea is to give the other party something you have that is very important to him or her but less important to you. In return you get something that is more important to you than it is to your spouse. Let us illustrate with a hypothetical case, where ongoing negotiations cost unnecessary time and pain.
John and Ann’s marriage clearly was over by the time John moved out of their house and went to live with his girlfriend. Ann sued for a divorce, then refused to go ahead unless John gave her more money than he felt he could pay. New York is among a minority of states where divorce still requires fault, such as adultery, abandonment, or cruelty by one of the parties unless the parties reach an agreement. The vast majority of states bury a dead marriage at the unilateral request of one spouse who alleges “breakdown of the marriage,” “incompatibility,” or similar no-fault ground.
Ann used New York’s fault law as a negotiating tool and dropped her divorce suit after a year, even though the marriage clearly was over. She thought John’s impatience for a divorce meant that she could get more money negotiating with him than a court would give her after a trial. John knew he could not get a fault divorce against Ann if she contested his lawsuit. Ann had good negotiating leverage; John wanted a divorce badly while Ann did not mind staying legally married, so long as she did not have to live with John. She used that leverage openly, telling him, “You can have your divorce anytime you want,” so long as he first met her financial demands.
WHAT DOES HE OR SHE WANT?
Ann’s cards were good, but she overplayed the hand and failed to make a quick deal. After two years of stalemate John was very frustrated at the law’s failure to solve his problem and remained unwilling to give Ann as much money as she wanted. John considered moving to another state to get a no-fault divorce there, but decided against it. He then tried another approach, which was to give Ann what she didn’t want — namely, John at home. He walked into the house and said, “Sweetie, you’re right. We’re married and I’m coming home tonight.” Ann left unhappily when John insisted on staying in the marital home that night and the following nights. His actions led to a property settlement after a few weeks and then to a divorce.
This illustrates several points. There was a good negotiating opportunity, but it was lost shortly after John left the house. Ann had something, the power to give John a divorce, which was very valuable to John and had little or no value in itself to Ann. It was reasonable for John to pay Ann something extra for a quick divorce, and initially he was willing to do so. A settlement would have allowed both parties to get on with their lives and avoid the stress on themselves and their children, which years of uncertainty and legal fighting always produce. The settlement opportunity passed, and John then forced the issue by doing something that he found unpleasant but that was even more unpleasant for Ann: returning home.
REMEMBER LONG-TERM COSTS AND BENEFITS
Again, keep in mind that where there are children, an ex-couple will continue to be involved with each other even after divorce. Support, custody, and visitation are ongoing processes, and negotiation or litigation tactics that leave one party or the other bitter may turn out to be quite expensive. If you both focus on giving your ex-partner what is comparatively more valuable to him or her and taking back what is comparatively more valuable to you, the chances are high that you will reach an agreement quickly and move on with your lives. But it takes two sides to negotiate, just as it takes two to fight. You should not allow yourself to be bullied or threatened as you negotiate your divorce agreement. If the other party tries to get an unfair agreement by intimidating you, you need to show firmness. Perhaps your resoluteness, and your attorney’s, will change your spouse’s attitude over time. Meanwhile, patience — and going to court for whatever temporary protections you need — is the proper strategy.
It also is wise not to box yourself in with ultimatums or written-in-stone positions. Have a clear idea of your interests and be creative and flexible in negotiating to advance those interests. Negotiation becomes difficult when the parties think in terms of absolutes and dictate terms to which they become glued.
Part of bargaining “in the shadow of the law” is knowing that if you and your spouse do not reach an agreement, a court is available to impose its solution on both of you. To illustrate some principles of risk taking in negotiations, here are some examples that ignore both the uncertainties usually present in real divorce cases and the non-economic costs of matrimonial litigation we have discussed.
Imagine that you and your spouse have $100,000 to divide between you. Imagine further that if you cannot agree on how to divide the $100,000, the two of you will spend $20,000 of the $100,000 in lawyers’ fees before a judge decides the case. Finally, imagine that both you and your spouse know that the judge probably would divide the remaining $80,000 evenly between you, so that after a trial you would each have $40,000.
If you conclude that the judge would divide the $80,000 evenly, why not agree between yourselves to divide the $100,000 equally, thus saving the $20,000 in lawyers’ fees and other costs? You may do so, but it is quite rational for your to push for close to $60,000 of the $100,000. This is because your spouse knows that if there is no agreement and the case is litigated, he or she will get only $40,000; thus any settlement that gives him or her more than $40,000 is an economic improvement over the probable results after litigation. There is a $20,000 range in which both parties will get more by settlement than by litigation; dividing that $20,000 may require some pushing and shoving between the two of you. If one party insists on $55,000 and will not be moved, the other has the choice of taking $45,000 in a settlement or litigating and getting $40,000. The first spouse runs risks in demanding $55,000; the second may choose to give up $5,000 and litigate, perhaps even out of spiteful desire to cost the first spouse the $15,000 difference between the $55,000 settlement demand and the $40,000 litigation result.
THE COIN FLIP
Your tolerance for uncertainty and risk may affect your success in negotiating such problems. Imagine that you had the choice between a sure $50 and a coin flip that would decide whether you took $100 or nothing. If you have a strong desire to choose the coin flip over the certain $50, you are a risk preferer in the situation. If you have a strong preference for taking the sure $50, you can be said to be risk averse. The risk preferer has an advantage over the risk-averse spouse in negotiations — for example, the dividing up of the $100,000 discussed above — for he or she has a greater tolerance for the possibility of losing. The risk-averse spouse may take the $45,000, particularly if he or she is convince that the other party is comfortable with the risk that a deadlock will leave each with $40,000. The risk preferer will, other things being equal, be more inclined to push for the lion’s share of the $20,000 at the risk of losing half of it. The risk-averse party will tend to settle for less than $50,000.
Whether you are risk averse or a risk preferer may depend not only on your psychological makeup but also on your economic ability to tolerate the prospective loss. Herb Cohen, in his book You Can Negotiate Anything, illustrates the point. He frequently asks his audience how many would accept a bet where Cohen would pay $1,000,000 if a coin toss came up heads and the audience member would pay Cohen $100,000 if it were tails. Very few people offer to take the bet because very few people can afford to lose $100,000. Cohen states that many would accept if the bet were $100 against $1,000 because most of us can afford to lose $100, and ten to one is a very good potential gain. Risk aversion may greatly diminish negotiating strength if the other side knows and chooses to exploit that aversion to risk.
TRIALS ARE ALWAYS RISKY
The inherent uncertainty in the judicial process gives the risk-preferring spouse an advantage over the risk-averse spouse. Your lawyer will give you his or her best estimates of what is likely to happen at trial, but courts often are given enormous discretion by statutes in divorce cases and the judge’s decision may be quite different from your attorney’s prediction, for better or for worse. You can avoid that uncertainty by reaching agreement now, but a relatively small tolerance for uncertainty may leave you needing an agreement more than your spouse does. One of the basic rules of commercial negotiations is that to make a good deal you should seem prepared to walk away without a deal. If your spouse knows that you cannot stand uncertainty and risk, he or she may insist on unfair concessions before giving you the certainty you want, the signing of a divorce settlement.
Finally, it is a cliche that a good settlement is one that completely satisfies neither party but with which each can live. If your side wins too much and the opposition gets too little, the whole agreement is more apt to come unhinged, and costly litigation may ensue. Where both sides feel that the terms are fair and reasonable and were arrived at by give-and-take, there is psychological and moral pressure to abide by the agreement, in much the same way you are honor-bound when you “shake on it.” Studies have shown that where the parties arrive at support terms by negotiation and agreements, which are acceptable, to the court, the obligor pays, and pays on time, more frequently than when support terms are imposed by the court. A word to the wise may be sufficient: try to minimize implementation and enforcement problems by making reasonable settlement agreements with your spouse.