Negotiating Divorce Facts and Tips
The Big Picture
Couples negotiating a divorce must deal with the terms and conditions for the division and distribution of the marital estate (both its assets and liabilities) as well as spousal and child support and visitation. Maintaining financial security is an important consideration, but spouses must remember that the income that supported one household will now support two. This means reduced finances.
In most divorces, one spouse wants out and one does not - at least at the onset. So negotiations may freeze when one person does not want the marriage to end. When marriages end, a surprising number of spouses fail to see the end at hand until the other spouse says it is over. Thus, the departing spouse may be way ahead of the person who does not see the breakup coming - at least emotionally and mentally. The person who is left may try to stall, sometimes in hope of a reunification, but as the divorce progresses, he or she moves toward the point where both spouses understand the marriage is over.
Holding Down Costs
Courts will approve a divorce agreement that is fair and reasonable. The more divorcing spouses can agree about the terms and conditions of their divorce, the less work there is for their lawyers and the lower their cost.
Leverage Factors in Divorce Negotiations
In divorce negotiations, each spouse may have considerations pertaining to the issues that are being disputed. For example, one leverage factor is: In whose interest is it to remain married longest? Answering this question can be a starting point of divorce negotiations because it creates leverage over the negotiations. A person prepared to wait has a bargaining tool that can be brought to bear in property negotiations. Delaying a divorce is a frequently used form of leverage.
Negotiations and a Good Faith Effort
Negotiation between spouses works when both act in good faith. A negotiated settlement dovetails easily in an uncontested divorce. Meeting in a neutral place, the spouses talk face to face and often offer tradeoffs of interests that they might otherwise claim. In this routine, their lawyers retreat to the role of advisors who keep their clients on track, moving toward a fair and reasonable settlement.
Divorce and the Marital Home
Many custodial parents want to keep the marital home so that the routines of small children are less disturbed by the divorce. A house can also be a valuable asset, but one should consider ownership expenses before taking on the responsibility. A house is a barren asset; it pays nothing until it is sold. Selling the home and walking away with cash may be a better decision.
Divorce and Retirement
The age of full entitlement for Social Security for most people is now 66 and older. If Social Security is a major part of a person’s retirement income, the hike in age may be a consideration when negotiating a divorce settlement.
Divorce and Health Insurance
Courts require parents to provide medical insurance for their children when the spouses have access to insurance. If neither spouse has health insurance, the custodial parent should ask that the insurance cost be factored into the amount of child support paid. Moreover, under the Consolidated Omnibus Budget Reconciliation (COBRA), the divorced spouse of a person who works for a company with 20 or more employees is eligible for COBRA medical overage for three years after the divorce.
Divorce and College
Divorcing spouses should consider the terms and conditions of their college expenses, including out of pocket expenses. Both parents and children are better served when this is decided at the time of the initial settlement agreement, even if the children are very young.
Divorce and Living Expenses
The parents must consider the cost of living, including extracurricular activities and daycare and even transportation. Some state courts allow these expenses to be negotiated into the amount of child support paid.
Useful Online Tools
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Resources & Tools
DELAYING THE DIVORCE -- Delaying a divorce is a frequently used form of leverage. A person prepared to wait has a bargaining tool that can be brought to bear in property negotiations.
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Basic Principles of Law for Construing Separation Agreements
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