This month we are featuring the first of two posts from Kevin Hannah Q.C. on negotiation. Kevin is an experienced mediator and we often look to his advice and guidance in this area. His outlook on negotiation can help families resolve matters outside of the judicial system. If you have any questions about how negotiation can help resolve your family law matters please contact us.
Around 90% of issues arising from a separation and/or divorce are resolved by negotiation, not by judges and courts. The odds are high that yours will be as well.
A negotiation is simply a discussion – the purpose of which is to resolve a problem/issue in a way that both parties can accept.
What makes a negotiation following separation different than, say, a negotiation about the price of a house or the terms of employment, is that the parties have a right to a court-imposed resolution following a separation if the negotiation fails. You can avoid or walk away from a negotiation to buy a house or take a job because you have no legal obligation to do either. But you can’t avoid a resolution of some kind regarding issues arising from a separation or divorce. Either party can force a resolution through the courts.
The prospect of a judge deciding for you if you don’t negotiate a resolution makes divorce negotiations fundamentally different from many other negotiations. As long as there is a legal issue to be determined there is a default process for resolution – an imposed “decider” as George W Bush described himself at times.
The problem with “deciders” is that you often cannot choose them, they cost a lot of money, they sometimes take a long time to produce a result, their decisions can be unpredictable and you have limited control over the decisions they impose. Pretty scary stuff.
Enter… negotiation.
When you negotiate (absent extortion or other forms of coercion) you have a lot of control over the outcome. If it’s a real negotiation you cannot be forced to say “yes” to any particular outcome. You can always say no. You can impose conditions on your “yes”.
The Law:
When I mentioned a moment ago that you have a lot of control over the outcome of a negotiation I didn’t lie, exactly, but I also didn’t tell the whole story.
The law tells you what rights and legal obligations you have. These set boundaries around negotiations. The law creates a legal “ball park”. For example, you don’t have to agree to pay your wife child support for the three kids in her primary care but you need to know that if you don’t agree to child support that is acceptable to both you and your wife a judge will apply the law and the government will enforce the support ordered if she applies for an order.
So the law can create limits within which negotiations occur. That’s generally a good thing, as long as the law isn’t a jerk. (Whether parts of family law are a jerk – e.g., spousal support in the opinion of some – I will leave it to someone else to write about. I’m going to assume for the purposes of this blog that the law is what it is, and that knowing what it is will be important to your negotiation.)
There are some “hard” limits placed on people by the law – and on judges as well – including grounds for divorce, whether and how child support is payable, the tax consequences of child and spousal support, whether certain property is exempt from sharing, sharable equally, or subject to unequal sharing. Actually, the list is rather long. For this reason it is foolish to enter and conclude a negotiation without receiving legal advice from a qualified professional – in most countries and jurisdictions, by a lawyer.
Even if you are the worlds most agreeable husband or the worlds most generous wife you need legal advice before a negotiation. There are legal ways to structure your deal to ensure that it accomplishes what you want accomplished. No one wants to sign off on a deal and then learn of some unexpected consequences when you file your next tax return, or go to sell property you thought was yours, or hear from a creditor about a debt you thought was his. It is risky and dangerous to negotiate a separation agreement without paying for legal advice about the law. Life and the law has become complicated. In the immortal words of my law partner, Doug Moe, “you don’t know what you don’t know”. If you don’t ponder this statement for too long, and don’t be too literal, it states a valid point. Be aware when you likely have too little knowledge about something important.
