It is a truism that for most people, the idea of DIY divorce negotiations with their ex is an overwhelmingly confronting and challenging concept.
It is also a truism, however, that such DIY divorce negotiations are the cheapest and most efficient way of coming to a divorce settlement. Direct negotiations with your ex (whether through one on one discussions, counselling, mediation or otherwise) can lead to settlements that are less cookie cutter and more suited to your personal situation. They can also be more enduring as the individuals involved have created the agreement as opposed to those that are prepared by their lawyers or imposed by a court.
Of course, there do exist some situations where we would not recommend DIY divorce negotiations. Those are generally where emotions are too highly charged, when one party has a personality disorder or is, or is potentially, violent. In such circumstances, it may be that other avenues, for example third party negotiation (for example, through lawyers or via the court), may be the only acceptable way in which the divorce dispute can be resolved.
Nonetheless, given all the advantages that come from obtaining a DIY divorce settlement, it is well worth asking “why not?” when considering whether to enter into such discussions with your ex.
The following questions may help you to clarify whether a DIY divorce negotiation is best for your personal situation:
1. Do I have a purpose for this negotiation with my ex?
Or is just a download? If just a download, is it worth it? Downloads can often be a short term relief at best – and generally have longer term more negative consequences.
It is important to spend some time reflecting on your purpose for any direct divorce conversations with your ex. These could include smaller goals, like building goodwill or explaining the kids’ costs to the non-primary carer. Or they may have a broader objective – like negotiating over the division of assets and/or what care of the children you will both have.
We also believe that simply by attempting the conversation, you will feel better about pursuing more aggressive avenues for resolution of your conflict with your ex if that conversation does not happen or does not progress in a productive manner.
Being clear about your purpose will help you clarify your approach to the conversation – as well as your assessment as to whether it was or was not successful.
2. Is your purpose to change the other person?
For example, are you meeting your ex under the guise of talking about property division when really your intention is to convince them come home? Is this realistic and the best use of the ‘goodwill’ they displayed in agreeing to meet to discuss your finances?
3. Is there any change likely to be had from having this conversation?
Either on your part or do you expect change from them (which may happen – but may not)? Is the change on their part “doable” given their motivations and needs?
4. Is the conflict or issue within you?
Have you explored your part in the interaction leading to the conflict? If there was contribution on your part, is it appropriate to apologise upfront to assist in defuse the situation upfront (understanding of course that a simply apology does not always heal the hurt immediately or at all).
5. Have you a better alternative to having this conversation?
That is, what is likely to happen if you do not have this conversation? What are the long term consequences, short term and medium term?
What are your legal and other alternatives? What is the time involved and cost of those other alternatives?
Can you live with those other options and alternatives? Can you live with yourself if you do (or do not) “go there”?
For most of our clients, other options, for example, third party intervention (lawyers or court) are only acceptable alternatives for them if they have pursued, with integrity and in good faith, direct settlement discussions with their ex. The very fact that they have attempted such negotiations and have done their best to achieve a settlement with their former partner frees them to pursue other more aggressive third party options more firmly if any dispute is not resolved.
(NB: We are not encouraging you not to seek legal advice in relation to your family law issues – but rather asking you whether, having obtained such advice, you are better off negotiating on your own behalf – see Question 9 in Part Two of this Article).
These are the first five of twelve questions we suggest that you ask yourself prior to deciding not to enter into direct divorce discussions with your ex. Part Two of this Article will be published shortly.