Reaching a divorce settlement you can live with involves preparation – practical and emotional
Divorce is stressful, often painful. You don’t need us to tell you that. When you reach the stage of negotiating your divorce settlement, you’ve already gone through an intensely emotional process. You’re in the home stretch. But this is the time that requires all your focus and resilience. The divorce agreement you negotiate will have long-term consequences for your financial and emotional wellbeing. It’s critical that you approach the negotiations calmly, rationally, and well prepared. This may sound ambitious; after all, you are deeply invested in the outcome and it can be hard to remain impassive. These tips may help you embark upon your divorce settlement negotiations not as adversarial but as collaborative. You loved each other once and now you both deserve to move on with dignity. And, if you have children, you will have an ongoing relationship, albeit a different one. “Sticking it to” your spouse is hardly a good start to workable post-divorce co-parenting.
Don’t dig a trench
Don’t approach the negotiation with an immoveable position in mind. Rather, focus on the outcome you seek or need you are trying to meet, not the output. An outcome is an end result, a consequence. An output is a quantity or amount produced; it is measurable, for example the rand amount of maintenance paid each month. The outcome is the impact of various outputs, in other words, in this example, the ability to maintain your quality of life. If you approach negotiations with a figure in mind, and that figure is non-negotiable, you can wind up at a stalemate. If you can’t reach a compromise, your divorce settlement will be decided in court.
Know what you are trying to achieve, whether that is the amount you need to cover your expenses or the amount you can afford to pay over, depending on your circumstances. There are always multiple ways of structuring an arrangement. Perhaps the monthly cash amount can be altered from your initial expectation and your spouse takes on other ongoing commitments, for example children’s music lessons and/or sports equipment.
Another way of thinking about this is: focus on what you need, not what you want. We’re often told to “know what you want” when faced with a conflict situation. But what you want and what you need are not always the same; and focusing on a want rather than a need may mean being fixated on a monetary amount rather than a workable solution that meets the need.
When you focus on the need you are trying to satisfy rather than a rigid position, you introduce room for negotiation and allow the other person scope to address their interests, rather than forcing them to defend an equally inflexible position.
Employ your EQ
The person sitting across from you is not your enemy. You may be hurt, resentful, and even vengeful. But the person you are divorcing is someone you cared about, and possibly still do, even if you no longer wish to be married to them. In our experience it is rare for divorcing couples to have lost all feeling for each other; there are many other factors that lead to relationship breakdown. Treat your spouse with respect and try to understand what they are going through. You know them well. Your knowledge of their emotional triggers can help you understand what’s going on, possibly even when they don’t. Rather than exploiting this as a weakness, you can use your emotional intelligence to find more creative solutions to difficult issues. If you are prepared to meet a particular emotional need, they may be willing to ease up on a financial demand. This could improve the “deal” you secure but, more importantly, result in a win-win situation where neither of you feels battered and bruised but understood. It will also help immeasurably as you navigate the post-divorce world of child contact and child support.
Furthermore, use your understanding of their emotional triggers to avoid hurting them. It is so easy…and may be so tempting…to bring up a past shortcoming and use it to your advantage, or simply as ammunition. Don’t say hurtful things. Imagine how you would feel if the tables were turned. If they are turned, i.e., if your spouse says something hurtful to you, keep your emotions in check, know that they are only trying to hurt you because they are hurting, and don’t rise to the bait, however hard that may be.
Use your EQ as well when considering non-monetary possessions. Conceding a much-loved family pet, if you know in your heart it means more to your spouse than you (which doesn’t mean you don’t love your pet), could create goodwill that will result in you securing a concession you didn’t expect.
Be honest
Negotiations (of any sort) can only succeed when there is trust between the negotiating parties. For trust to be established, there has to be honesty and transparency. This may be difficult if one of the reasons for the divorce has been dishonesty in the past. Nevertheless, it is counterproductive to try to hide assets or financial information. If you have been asked for information (often called “discovery”), provide it promptly, neatly, and willingly. Ask if there is anything they need. Operate in good faith, and it will stand you in good stead in the negotiating process. You also can’t expect them to respond to your discovery request readily if you are not prepared to do the same. Trust is a two-way street, but you may have to set aside past grievances to rebuild trust now.
Focus on the problem not the person
By now you and your spouse have already decided to divorce, for whatever reasons. This is not the time to dredge up old arguments or use your partner’s weaknesses against them. You need to arrive at an agreement that allows you both to move to the next stage of your life as smoothly as possible. That is the problem at hand, and it’s a shared problem. Particularly if you have children, it’s important that you exit the divorce with dignity and with respect for each other. It is unhelpful for children to see their parents at loggerheads forever. Therefore you need to set aside the emotional issues you have with your partner. Distance the problem from the person and focus on what needs to be done and how you are going to do it.
Communicate
Both during negotiations and in your preparations, effective communication is key. Express your views clearly. Repeat what your ex has said to be sure you have understood correctly. Focus on what you feel and what you need, not on what they have said or done (or not done).
Contested vs. uncontested divorce
There are three types of divorce in South Africa: contested, uncontested, and mediated. The advice in this article assumes that you and your spouse are on civil terms and can sit down and work out your divorce settlement yourselves. You will still need legal advice to ensure you don’t overlook the more complex aspects of financial uncoupling, such as pension splitting, but you will save a lot of costly attorney time if you and your spouse have agreed on household property, childcare arrangements, and the basic financial structure of the divorce (who gets the house or will it be sold, maintenance, etc.). This is an uncontested divorce.
If you can’t agree on anything, your divorce will go to court, and the court will determine the terms of the divorce. A contested divorce can drag on for a long time and rack up enormous costs. It’s worth doing all you can to avoid this.
But if you aren’t able to sit down together and work everything out, a professional mediator can help you negotiate and arrive at a settlement. This is called (unsurprisingly) a mediated divorce. It will cost you more than an uncontested divorce but a lot less than going to court. All of the advice in this article is equally relevant to negotiations that are mediated.
Cape Town family lawyer can help
If you are considering divorce and need legal advice, even if you’ve already agreed the divorce settlement terms with your spouse, talk to our divorce attorneys. We’ll work with you on the way forward. At SD Law we are known for our EQ and our sensitive approach to family law. We’ll handle your case with equal parts of compassion and efficiency. Contact Simon on 086 099 5146 or email sdippenaar@sdlaw.co.za for a discussion in complete confidence.
For more detailed information on how to get a divorce, download our Guide to Divorce.
Further reading:
Divorce Attorney Cape Town
http://divorceattorneycapetown.co.za/The information on this website is provided to assist the reader with a general understanding of the law. While we believe the information to be factually accurate, and have taken care in our preparation of these pages, these articles cannot and do not take individual circumstances into account and are not a substitute for personal legal advice. If you have a legal matter that concerns you, please consult a qualified attorney. Simon Dippenaar & Associates takes no responsibility for any action you may take as a result of reading the information contained herein (or the consequences thereof), in the absence of professional legal advice.