What is Needed in a Negotiation?

The essential ingredients of any negotiation are preparation, knowledge of negotiation technique, working knowlege of human behavior, and understanding of the opposing party's needs. In negotiation, most people are willing to exchange and compromise; we will "give a little to get a little". Of course, the issue must be negotiable; one can trade the equity in one's home for the equity in a boat, but one cannot trade one's child for the stock portfolio.

In negotiations between spouses, a certain level of ambiguity is always present. When they begin a negotiation, the outcome is uncertain, because neither spouse knows in advance how much the other spouse is willing to compromise. As common interests evolve, the outline of potential compromise becomes clearer. However, the client must exhibit the capacity to adapt and to accept "bargaining in the shadow of the law".

The specific areas that are likely to be negotiated in a divorce include property division, debts, child custody and visitation, child support, and attorney fees. Depending on the skills of the divorcing couple, some or all of the following issues are susceptible to direct (lawyerless) negotiation:

PROPERTY DIVISION

What property is going to be divided? What knowledge does each spouse need to develop an intelligent, fair division of property? What is the character and value of the assets? Finally, what assets should each spouse have? (For example, who will hold title to the family home and other real estate? In an apartment, who will retain the lease? Does the couple have business ownership to divide? Does the couple have business ownership to divide?)

DEBTS

How will the spouses handle joint debts? Who will pay the currently outstanding bills? Will the credit cards be canceled? How will joint tax returns be handled?

CHILD CUSTODY AND VISITATION

Where will the child's primary residence be? Wiull the parents have joint custody? Who decides which school, camp or church the children will attend? How will the couple handle vacations?

CHILD SUPPORT

How much child support should be paid? When will support be paid? Will the amount be reduced when the children are at camp or with the noncustodial parent? Who pays for medical expenses and insurance? Which parent will claim the tax exemption(s) for the children?

SPOUSAL SUPPORT

Will payments be lump sum or periodic? When will they be paid? Will there be penalies for late payment?

ATTORNEY FEES

Will each party be responsible for his or her own attorney fees or will one party have to help pay the attorney fees of the other?

In the sensitive area of child custody, for example, a recent study examined divorce decrees and the relationship between what parents said they wanted for a post-decree parenting relationship and what they ended up with. The study covered over 1000 families who divorced between 1984 and 1988. In 90% of the cases, the mother received custody of the children, although 2/3 of the fathers wanted either sole or joint custody. When there was conflict betwen the parent's wishes, the mothers prevailed more often than the fathers, both in negotiations and in trial.

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