What is the role of the law in divorce negotiations? It’s actually a huge question and worthy of consideration, not only by professionals who work with separating and divorcing families but by those families themselves. There is often a tension between a lawyer’s view of the right outcome as informed by her view of the law (and the appropriateness of its role in negotiations) versus the view of the people who are living their lives, trying to find the best outcome for their situation. There are some reasons to really consider the law, and there are some reasons to kind of let it lie. It’s a tension that I think is relevant to every single negotiation, so let’s talk about it.
What are the reasons for bringing the law into divorce negotiations, particularly outside of court? Clearly, there will be law-based conversations in negotiations, in a litigation, or when there’s a court action. Those discussions are deeply, deeply in the shadow of the law.
But where you’re less in the shadow of the law—where the conversation is not in the context of a court proceeding—there are still good reasons to consider what the law says.
The law clarifies part of the reality the parties face. There are laws that apply to divorce. When resolutions, mediation, collaborative law or negotiations fail, the parties will end up in a law-based kind of resolution. That’s reality. Understanding the applicable law helps people to know what the likely outcome might be in court. It’s usually a range of possibility, not like one distinct possibility that is absolutely going to happen. That knowledge can help people evaluate their situation and the options that they have.
The law provides legal protection for the people to ensure they have the appropriate disclosures and waivers and that everything is done properly. So that, if they reach an agreement, whatever it is, it is protected, solid, safe, and not subject to future challenge.
The law provides an external reference point. Sometimes people, when negotiating a divorce in particular, but I think in any situation, want to know what other people do: How is this usually handled? The law can create that external reference point to how things are often done. This reference point can both normalize the conversation and provide additional options for consideration.
Sometimes, lawyers can overplay this. Lawyers are sometimes really uncomfortable when the parties want to do something that is creative or different. There can be a real dissonance for the lawyer between the creative, problem-solving approach that the parties may want and the way we usually do it. There are sometimes good reasons for that reluctance, but sometimes it is really worth finding a way to be creative.
The law as an external reference point also embodies underlying principles of fairness. It represents the efforts of the legislature and courts to find a way to be fair. I find that in divorce negotiations, most people want to be fair. They want to feel like they were treated fairly and that they treated the other person fairly under the circumstances. The law strengthens the agreement and can reinforce the parties’ commitment to making their own decisions outside of the courtroom.
These are some of the reasons to bring the law into negotiations.
But then there are some cases where the law is really problematic.
The law doesn’t fit the situation. I have a number of cases where the law, the legal arguments for a particular outcome and what might happen in court, don’t really fit the situation. The parties need to come up with something that wouldn’t happen in court in order to make the resolution fit their lives.
One example can occur when a person is compensated in a lumpy fashion. They don’t get the same check at regular intervals. They get a certain amount of money throughout the year, and then there’s a big bonus or commission payment. Because the support calculations use an annual number and then usually divide the support payments into a regular weekly or monthly payment, that can create a real cash flow problem for a paying spouse.
The law can contradict personal values. Sometimes the impact of the law contradicts what one or both people feel is fair. Sometimes the application of the law can feel callous, and other times, it can feel very heavy handed. It is often the case that both parties feel that it applies to them unfairly, and when that happens, they have the option to work together to see if they can’t figure out something better.
One of the things I think that parties need to figure out, and that we as lawyers need to help them figure out, is how to navigate their own reference points and the “LAW” in a way where they feel like they reach a decent outcome—where they don’t feel like a fool or a chump, and they don’t feel like one side used the weapon of the law to get one over on the other party.