Divorce: Overcoming the Obstacles to Agreement - Ten Steps

by Ed Sherman

You’re going to be working on your divorce agreement outside the legal system, because the things you can do to help yourself outside the legal system are far more effective than anything a lawyer can do for you.

But please don’t just walk up to your spouse and start negotiating. First, you want to do something about the obstacles to agreement. This means that before you get down to negotiating your real issues, you have to:

calm emotional upset, reduce fears and balance the bargaining power of both parties;

get reliable information and advice;

and learn how to get safe, reliable help if you need it.

Here are ten specific things you can do to help yourself. These steps will help you deal with the obstacles so you can get down to negotiation. Use it as a checklist to make sure you’ve built a good foundation for your negotiations. If you run into trouble later, come back and double-check these steps.

1. Make some “New Life” resolutions: Start thinking of yourself as a whole and separate person. You may feel wounded, but you are healing and becoming whole and complete. Keep that picture in mind. Pain and confusion are part of healing.

Let go of old attachments, old dreams, old patterns that don’t work; this is your chance to build new ones. Decide you will not be a victim of your spouse or the system or yourself. You will not try to change or control your spouse–that’s all over now, it doesn’t work, it’s contrary to the meaning of divorce.
Concentrate on yourself, especially on your own actions. You can do something about what your spouse does by changing what you do.
Concentrate on your physical health, your work, children, friends. Try to become quiet and calm. Keep your life as simple as possible.

2. Insulate and protect your children: Involving children will surely harm them and upset both parents as well. Keep them well away from the divorce. Tell them the truth in simple terms they can understand, but don’t discuss the divorce or your problems in front of them. Don’t involve the children or pass messages through them. Don’t let them hear you argue or hear you criticize their other parent.

Let your children know you both love them and will always be their mother and father, no matter what happens between you.

3. Get safe, stable and secure, just for a while. Your first and most important job is to do whatever you must to arrange short-term safety, stability, and security for yourself, the children, and your spouse–in that order.

This doesn’t mean forever, just for a month or a few months at a time. Don’t be concerned yet about the long-term or the final outcome, and we’re talking about minimum conditions here, not your old standard of living.

Don’t even try to do anything else until minimum conditions are met.

You can’t negotiate if you don’t know where you will live, how you will eat, if you are afraid for your safety, or if you think your house is about to be foreclosed or your car repossessed.

4. Agree on temporary arrangements: If you can work out your own temporary arrangements, you won’t need an attorney to get temporary court orders.

Start by agreeing that you want a fair result and that you will both act fairly. Agree to communicate before doing anything that will affect the other spouse or the estate or the children. The goal here is to avoid surprises and upset, especially including things like closing accounts or starting legal actions.

It takes a long time for things to settle down and for the spouses to work out a final agreement. Meanwhile, you have to arrange for the support of two households on the same old income, the parenting of minor children, making payments on mortgages and debts, and so on.

It will work better if your temporary arrangements are put in writing. If you have trouble working this out, use techniques and resources discussed below.

5. Slow down, take some time: If you can make your situation safe and stable for a while, you don’t have to be in a hurry.

Think of divorce as an illness or an accident; it really is a kind of injury, and it takes time to heal. You have to go slow and easy, be good to yourself. Some very important work goes on during this slowdown.

6. Get information and advice: First, organize your facts, records and documents. When you’re ready to start, go to www.nolotech.com and get the worksheets.

You’ll want lists of assets, deeds, statements, account numbers, income and expense information, tax returns and wage stubs. Get information from your records and from your accountant, from recent tax returns, and from your spouse.

Spouses should have a full and open exchange of information: it helps to build trust and confidence, and, in many states, it’s the law, so you might as well just go ahead and do it. If information is not exchanged freely outside of the legal system, you will probably end up in court with attorneys doing very expensive discovery work.

Next, learn the rules for divorce in your state as they apply to your case. You especially want to know how predictable the outcome would be if your facts were taken before a judge.

You may find some useful books on the laws of divorce for your state or you may decide to get some legal advice. For more information on how to do this, see Chapter 6 of Make Any Divorce Better, published by Nolo Press Occidental.

Be very careful where you get advice. Your friends and relatives will be a fountain of free advice, but don’t take it–the price is too high if they’re wrong. They mean well, but probably don’t know what they’re talking about. Use your friends for emotional support, but take advice only from an attorney who specializes in divorce. Don’t take advice from paralegals or people who run typing services; they’re not trained for it.

In California, you can call Divorce Helpline at (800) 359-7004 for a wide range of legal and practical assistance.

7. Focus on needs and interests; don’t take positions yet: A position is a stand on a final outcome: “I want the house sold and the children every weekend.”

In the beginning, there’s too much upset and too little information to decide what you want for an outcome. Taking a position is bad negotiating–it’s an invitation to an argument: the other side either agrees or they disagrees and you’re in an argument rather than a discussion.

It’s better to think and talk in terms of needs and interests. These are your basic concerns: “I need to know I’ll have enough to live on. I want a good relationship with my children. I want an end to argument and upset.”

When put this way, these are subjects that you and your spouse can discuss together.

8. Stick with short-term solutions: Concentrate on short-term solutions to immediate problems like keeping two separate households afloat for a few months; keeping mortgages paid and cars from being repossessed; keeping children protected, secure, stable, in contact with both parents. These are things you can try to work on together.

9. Minimum legal activity: You want to avoid any legal activity unless it is necessary–zero is best, or the minimum required to protect yourself or get your case started.

Ideally, you will avoid retaining an attorney and you won’t give your spouse any reason to retain an attorney.

10. Get help if you need it: Consider counseling for yourself or your children. For help with talking to your spouse, consider couple counseling or go see a mediator.

Mediators and counselors are low-conflict professionals who can help with emotional issues, defusing upset or, in the case of the mediator, with making agreements for your temporary arrangements.

If you follow these steps, you’ll be well on the way to working out your agreement.

If you and your spouse slip easily into conflict, read the article How to Reduce Conflict and Improve Your Life.

It is very important that your spouse has this information, too. Try to get him or her to read this article or go toMake Any Divorce Better and get your spouse a copy of the book from which this article was excerpted.

Here are some more articles that can help:

Divorce: Overcoming the Obstacles to Agreement – Ten Steps

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