Should I Attempt To Negotiate the Terms of My Divorce On My Own With My Spouse While I Am Represented by Counsel?

This Week’s Blog by Carole T. Orland

  • During you divorce, conversations with your spouse may be contentious and uncomfortable.
  • If you are in inherently uneven bargaining positions, it will often not be productive to negotiate the case with your spouse on your own.
  • Any communications with your spouse during your divorce should be consistent with the message and strategy you have discussed with your attorney.
  • Four-way meetings may lead to positive results.

There are divorce lawyers who may instruct you not to have any conversations with your spouse on your own once you have legal representation. Our office does not subscribe to that approach in most instances. If you and your spouse, despite the fact that you are divorcing, are able to conduct civil and meaningful conversations, it may be productive to do so. We would qualify that by saying that any such communications should be consistent with the message and strategy you and your lawyer have agreed upon. It is not helpful to your case to have your lawyer proceeding down one path, only to have you travel down another.

One area that divorcing couples are often able to productively discuss on their own is a parenting arrangement for their children. It makes sense. Certainly parents understand their children’s needs and emotions far better than any lawyer in the case and almost always better than any judge who would preside at trial. So, working out arrangements for your children is an area of commonality between you and your spouse. It also can have a secondary benefit of getting the divorce on the right track. Trust in each other to come to an agreement about your children can spill over to the financial aspects of your divorce in a positive way.

Nevertheless, conversations with your spouse about a financial settlement can be tricky. If one spouse is more facile with finances, taxes, and math, it will likely result in an uneven bargaining position. In these situations, it is often better to have lawyers do the negotiating, sometimes with input from an accountant and forensic expert, as necessary. You may still talk to your spouse to arrive at general ideas about settlement, but getting into the granular issues if the bargaining positions are disparate, is likely not going to be productive.

If talking on your own to your spouse about settlement is not comfortable or inadvisable for the reasons stated above, another option might be a four-way meeting, where the parties and their lawyers meet outside of court and attempt to work through the issues. Often the case can be resolved at the conclusion of the meeting. But at the very least, it will be clear as to what the areas of agreement are and the issues about which the Parties agree to disagree. The result is an agreed upon agenda that the Parties with counsel can continue to work on, with the goal of ultimate settlement.

Our lawyers at Broder & Orland LLC are experienced in guiding our clients through negotiations during their divorce. We have an excellent handle on when discussions between the Parties will be productive, when negotiations should be conducted lawyer-to-lawyer, and when four-way meetings may lead to positive results.