The Finest Divorce Settlement Tips Imaginable

It is a fact of life that soon-to-be ex-spouses will invariably attempt to discuss settlement terms with one another. We are universally drawn to engaging in these conversations and are blindly optimistic about their outcome.

The problem is that they don’t give us lessons on how to handle ourselves during these exchanges. As a result, many well-intended and fair-minded people can unwittingly say the wrong thing and wind up in an otherwise unnecessary court battle.

At some level, we know we are asking our partner to give us something that they are likely unwilling to give us. On another level, we naively believe that we have what it takes to persuade them to see things our way.

Most of us find that our common sense, verbal skills, and general savvy (which may have served us well in other parts of our lives) are not effective during these talks.

Society did not warn us that spousal settlement discussions are extremely sensitive and require a special touch. We feel free to speak as we wish, and this is a mistake. We quickly learn that there is no free speech in divorce. Every word counts.

Divorce brings out the worst in us, and it happens at a time when we must be at our best (if we hope to avoid a costly and painful court experience).

The following negotiation insights and tips highlight what professional negotiators suggest we say and do (and not say and do) if we hope to persuade our partner to agree to an out-of-court settlement.                 

Despite your spouse’s predictable declarations that he/she is only seeking a deal that is fair, you must anticipate that their definition of “fair” may have little to do with fairness. It will more than likely represent what they believe they are entitled to. If you do not agree with this sense of “fairness”, your job becomes that of persuading them to see things as you do. This is not an easy task. However, as you will soon see, there are certain professional negotiation insights that can assist you in getting the job done.

Doing this takes persuasion, and persuasion is not a light switch – it is a process that normally takes more than one sit-down.

Processes take time, so you must accept that it will take time to reshape your partner’s thinking. This requires your patience and understanding. It is unlikely that you will be able to change your spouse’s mind on the timetable that you wish, so don’t allow yourself to get upset or frustrated when it doesn’t happen.

Trying to change your soon-to-be ex-spouse’s mind is like trying to turn the Queen Elizabeth around in one sweep in Lake Geneva. It takes a lot of little turns to get the job done. 

The suggestions below will show you how to get your message through to your soon-to-be ex-spouse’s wiring. And then, and only then, will you be able to flip the switch.

Since people rarely get all the things they want in these negotiations, the partners should voice their mutual acknowledgement of this reality at the very start.

They should also realize that is in both of their best interests to set their autopilots toward a general, overriding spirit of compromise, instead of the traditional and counter-productive winner-take-all attitude that has always been prevalent in divorce. A century or so of divorce wars tells us that the winner-take-all approach doesn’t work too well.

Successful spousal negotiations are not about winning or losing. They are about both people working together as partners (and not as competitors) to find viable solutions that both can live with.

Before you begin the actual settlement discussions, create your own house rules. Five very helpful rules are:

  1. Agree that only one of you will be allowed to get angry at the same time.
  2. Agree to take a 20-minute break if things get heated, no matter who is to blame.
  3. Agree that either party can call a time-out and it must be honored instantly (this means mid-sentence, if need be) with no last words thrown in.
  4. Agree that the party speaking will have the floor until they say they give it up. If there is a silence, and only then, the other may ask for permission to speak. The proper question would be “May I have the floor?” Neither should ever ask questions like “Are you through?” or “Is it OK if I get a chance to say something?”
  5. Agree you won’t close an unsuccessful negotiation meeting with any war words or declarations of finality. Before each meeting begins, promise in advance that you will meet again at the same time and place on the very next day if either party walks out or if the meeting otherwise gets out of hand.

Tread softly at the beginning of your settlement conversations. A helpful atmosphere created right from the start is vital to your overall chances of settlement.

Always try to keep an open mind. You never know when you or your spouse may say something that can be of use later as a stepping-stone to a settlement.

When the discussions first begin, try to say something like, “You are a reasonable person, and I’d like to think that I can also be reasonable, and I’m sure we are capable of working this out. I just want you to know that I won’t be happy with anything we agree on unless you are just as happy.”

And you might add, “I want our mutual satisfaction to be our real target. If we get off track, I give you permission to remind me of this, and I hope you will allow me to do the same.”

Recognize the reality that both sides must give up something they want if they hope to make the deal attractive to the other. Until the two participants are ready to do this, a settlement is next to impossible.

People who are unwilling to compromise have lengthier and more costly divorces.

Speak in a calm and comforting tone of voice. Always keep your voice level. This is an excellent tool for displaying compassion and sincerity and it enhances your chances of being heard.

Accept that the negotiation process is only as quick as the pace of its slowest participant, and that your partner’s pace is out of your control. His/her willingness to negotiate is not something you can speed up. Never push them and be sure to tolerate their foot dragging. Complaining about it creates more problems and delay than the reluctance itself. Never let on that their pokiness irritates you.

Be sure your facial expressions do not indicate negativity.

Maintain eye contact when listening. A failure to do so communicates disapproval or lack of interest.

Don’t allow yourself to get animated and do not move around. Above all, stay in your own space.

Try to assume the most “listening” position you can. Uncross your hands and legs, sit up straight on the edge of the seat, face the speaker, and lean forward. Try to add an occasional head nod to this mix.

Give your partner ample opportunity to explain how they see things. They need to speak for at least 45 seconds straight to sense that you care about hearing their side.

Never speak when your partner is speaking.

Never pass up an opportunity to remain silent. The more you talk is the more he or she won’t hear.

Force yourself to disengage from your emotions when talking settlement terms with your soon-to-be ex-spouse. This can be difficult, but it pays dividends.

Let the negotiations proceed at your partner’s pace, not yours.

Do not expect to get everything you want.

Always make it clear that you are willing to compromise. They may need this nudge to reciprocate.

Concessions are the language of negotiation. They delicately and subtly indicate that you see some legitimacy in your spouse’s reasoning. This aids the process because resistance softens when legitimacy is recognized.

Always remember that no one changes their mind until they have been heard and they know they have been heard.

Accept that you will not change your partner’s mind by disagreeing with him/her. Your only chance of doing so is by listening to them and validating the way they see things. You do not have to agree with their position, just let them know that you respect their right to think as they do.

Always wait three seconds before responding to anything your spouse says. This short delay shows that you were listening, instead of planning on what to say when they finished. Waiting to respond shows respect because it signals that you wanted extra time to let their thoughts sink in.

Repeat their settlement thoughts back to them (thus confirming that you were listening to their every word), but do so while maintaining their point of view, not your own.

Listen as hard as you can to hear everything that is said. Listening is the easy part – the hard part is in hearing what they say.

Listening is the largest part of what it takes to settle a divorce case.

Assume, or at least pretend, there is a lot to learn from what your spouse has to say.

Show a keen interest in your partner’s concerns.

Always try to show understanding for your partner’s point of view.

Do not generalize your spouse’s position to be only what you expect it to be.

Make space in your mind to store their viewpoint along with your own.

At the very least, force yourself to look curious about your spouse’s perspective.

Show that you want to understand your spouse’s position by asking supporting questions. Asking questions softens opposition. It suggests that you are open to considering more than just your own wishes.

Ask for an explanation of the feelings that governed their thinking when they were developing their proposal.

Do not be dictatorial about anything. Instead, be humble. Show an eagerness to know more about your partner’s position.

Act as though you are the one who is learning, not the one who is teaching. Be a weather gathering aircraft, not a jet fighter.

Understand that if you want your spouse to recognize or validate your point of view, you must first recognize or validate theirs.

Always keep in mind that one of you must be nice first, or a civilized divorce is never going to happen. Do not rely on your partner to be that person.

Realize that by fighting, you never get enough. By showing some flexibility, you stand in a better position to get more than you expect.

Be very careful of your first reaction to something your partner says.

Anticipate that you will hear something that will infuriate you and prepare yourself to remain cool when this happens. Be ready to deliver a non-offensive reply.

Show understanding for your partner’s position. Compassion and understanding stimulate compassion and understanding. What you give may come back buttered.

Make a strong effort to allow them to talk more than you do. (It is incorrect to assume that the person doing the talking is the person who is driving the discussion.)

Listening is the cheapest concession you can make.

Listening is more than just waiting for your turn to speak.

Listening is your red carpet to getting your partner to hear you.

Not listening is the heart disease of spousal divorce settlement conversations.

Listen to them in the same way that you would want them to listen to you.

Listening is vital because it opens your partner’s thinking. It disarms and quiets them. It negates their skepticism and encourages a feeling of safety and trust.

Avoid telling your spouse what is fair. “Fair” is something that exists in your mind only and is of little importance to your partner. Instead of proclaiming what is fair, ask your spouse what his or her concerns are. They don’t care what you think, they only care about their concerns.

Do not generalize your partner’s position to be only what you expect it to be.

If your partner makes an offer, do not belittle it. Validate it as a possibility, explain why you disagree, and ask for their assistance in coming up with something that the two of you might find acceptable.

Do everything you can to avoid aggravating your spouse. People who are angry or otherwise emotionally charged are not open to considering solutions. Clear mindedness makes it possible for your partner to see the problem as you do.

While it is impossible to keep anger out of divorce, it is not impossible to learn how to control it. Recognize the need to create lag time before responding when your spouse presses your buttons.

All you must do is wait three seconds before responding. Just three seconds. Focus only on the passing of this small amount of time, and the wave of anger will become manageable.

Remember that anger never sells anyone on anything. Angry people do not settle – they fight.

People are more inclined to be cooperative when they aren’t dodging arrows.

Step back from your spouse’s emotional outbursts, verbal barrages, innuendos, hateful looks, etc. Don’t allow yourself to get sucked in. Take pride in your ability to resist firing back.

When your blood starts to boil, focus on the big picture. Look at the discussions with your spouse as an entire forest. If your partner becomes unreasonable or nasty on a particular settlement item, see this behavior as just one or two trees in an otherwise healthy forest. Back off and put it on a shelf in your mind. You can always return to this item on a better day.

If you feel yourself starting to get angry, pretend you are in the balcony watching two actors playing you and your spouse on the stage below. The same words that would normally get us heated up can sound downright laughable when the actors say them.

Never fight anger with anger. Angry spouses lose negotiations.

You will not lessen your partner’s anger until you can control your own.

If you feel some anger rising, say something like, “If it’s OK with you, I’d like to go over your objectives again. It’s easy for me to get off track, and I want to be sure that I’m not losing sight of what is important to you.”

Remember that your anger is your spouse’s best weapon.

Avoid making any negative remarks about your partner’s vices, traits, propensities, habits, work tendencies, appearance, grooming, general behavior, and so on.

Do not make the mistake of believing everything you think.

Do not make any assumptions about your partner’s intentions or motives regarding anything they say or do.

Be careful not to listen to friends or family when they tell you what your settlement position ought to be.

When your partner makes a proposal you don’t agree with, do not shoot it down in its infancy. Accept that it is normal for them to see the world in a way that favors their position, and that it is your job to deal with what they see. You only have to deal with it; you don’t have to accept it. However, it is necessary for you to understand it as it is, and not as you think it is, or as what you wish it to be.

Remember that it does not cost you anything to “allow” your spouse to have a differing viewpoint. Show that you are receptive to hearing it and that you will respect their position.

Accepting their perspective as legitimate does not mean that you must give up your own.

Acknowledge and validate their view and agree with them whenever you can. However, preface your statement of agreement in using your experiences. For example, “I can see why you are asking for this amount. That makes sense based upon what you have been told, but what I have learned on this subject brings me to a different conclusion.”

If your spouse makes an offer, don’t put them down for suggesting it. Always validate their suggestion as a possibility, explain why you disagree, and ask for their assistance in coming up with something that the two of you might find acceptable.

Instead of differing with your spouse, ask questions in response to their oppositional statements. Some questions that can produce a meaningful dialogue are:

I would like to talk about this some more. How about you?

Can we start by making a list of what we do agree on?

I hear what you are saying, but I must ask if there is anything I can do to help prove that my heart is in the right place?

What do you see as an obstacle to our being able to resolve this?

How can I prove that I am willing to meet you half-way?

Is there a number that would make you feel comfortable?

Can I ask you to elaborate on why you feel XYZ is equitable? What factors are you considering?

Is there any concession I can make to help sway your thinking?

Can you name one or two things I can do to tempt you to say YES?

What do you say we try to come up with something creative – something we might both be able to live with?

Consider the possibility that when your spouse says no, it may not be in response to the way you see things. It could be in response to the way they see things.

Before reacting, try to find out exactly what facts your spouse is addressing. Perhaps their no would be an acceptable answer to the set of facts that they are seeing.

Do not carry on when your partner says NO. A “No” is rarely final and can often serve to mark the real starting point of the negotiation process.

Always think about what you are going to say next. Nothing should fly of your mouth without considering the consequences. This is one of the times in life where you do not have free speech.

Never try to anticipate what your partner is going to say next.

Never bring up things that happened in the past.

Do not blame your spouse for anything. Blaming makes them angry.

Anger and blame will never get you what you want.

Think long term. Settling the entire case is what is important. Allowing your partner to rile you up on any singular issue is not productive. Think past it; you can always circle back when the item has lost its intensity.

Do not expect sympathy from your spouse. They expect to get sympathy from you, not the other way around.

Avoid trying to get paid back for any deeds or compromises you may have made during the marriage.

Avoid imposing your values on your spouse with statements like, “A decent person wouldn’t do what you did” or “Maybe the children should know that their mother/father has no morals.”

Never say you know how your spouse feels. This is the ultimate no-no. However, it is helpful to comment on the emotion they are displaying (e.g., “You seem angry or displeased”).

It is important that you try to identify the emotion and then mention it. It is OK if you identify the wrong emotion. Experts advise that it is therapeutic for your spouse to sense that you have picked up on their agony, no matter what name tag you give it.

Do not attempt to fix or repair your spouse’s feelings. Just acknowledge them as valid. Stay away from things like, “Just look at the bright side,” or “How can you feel poor? I’m the one who is going broke,” or “How can you be mad? You’ve got nothing to be mad about.”

It would serve you better to simply say, “This must be very hard for you.”

Be careful not to make statements that proclaim your entitlement and/or your spouse’s entitlement, such as, “The pension is all mine. I worked for it.”

Do not challenge or insult your partner or anything they say. Sentences such as “How can you just sit there and lie?” or “Maybe if I ever came home and found dinner on the table” will only bring you closer to an expensive and damaging divorce war.

Never defend yourself. Don’t even think about it. It will only make your spouse angrier.

Defending yourself only confirms their belief that you “just don’t get it.”

Refrain from telling your spouse what their position should be. Do not say things like, “Here’s what I think you should do,” or “Everyone knows that’s a dumb choice.”

Sentences like these make you sound like you have all the answers, and they put your partner on the defensive. Defensive people do not settle cases.

Instead, say something assuring like, “I’m sure we can figure this out,” or “I think we are both reasonable, so let’s put our heads together and try to find a middle ground” or “I’m sure we can do what it takes to solve this.”

Do not ramble on about how you didn’t mean to hurt your spouse. This does not cheer them up one bit.

Never respond to something your spouse says with a remark like “Whatever” or “Do what you want.” Nobody wants to hear a flippant retort when they are trying to make a point. Some other word grenades are:

Get a grip.

                                    Get over it.

                                    Grow up.

                                    Surely, you’re joking.

                                    Anyone see my violin?

                                    My heart bleeds for you.

It looks like someone got up on the wrong side of the bed today.

You never want to throw gasoline on a situation that is already incendiary.

Do not attack your spouse. Instead, try to attack the problem with your spouse. For example, say: “The problem really isn’t because of you or me. It is because there isn’t enough money to go around. What do you say we put our minds together to see how we can make the shoe fit?”

Make I statements, not you statements. For example, “You never pick up after yourself.” Instead, say, “I feel disrespected when I have to pick up after you.” The latter gets your point across and voices your disapproval but does not antagonize your partner.

The essence of this subtle difference is that “I” statements say, “I’m the one with the problem, but “You” statements point the finger and imply that the other person is the one with the problem, This puts them on the defensive, and defensive people do not compromise – they fight.

When your spouse throws a zinger at you, deal with it by turning the zinger into a question, such as, “I am sincerely curious about why you feel that I am bull-headed [or whatever the complaint or insult is]. Sometimes I don’t see the whole picture, so please tell me where you feel I went wrong.”

Avoid displaying a “you owe me” attitude or making any statements that depict you as a victim. For example, don’t say things like, “I’ve given you my best years, and now, because of you and your tootsie, I’m probably going to end up being a bag lady.”

Do not back the other side into a corner by giving them an ultimatum, e.g., “This is my final offer. Take it or leave it.”

If they give you an ultimatum, diffuse it by saying, “You know, I might go along with this if you would agree to some of the other things I have asked for.”

When they ask what those are, tell them you want to be very careful before presenting them, and that you would like a day or so to state them properly. This neutralizes the tension created by the ultimatum and gives them a chance to get off the hook for making it.

Since there is no back pay in divorce, it doesn’t do any good to transmit that you deserve some extra consideration because of past deeds. Things like working a lot of overtime or two jobs, cooking, cleaning, supporting the other’s career, etc., simply do not count.

Never get confrontational. Forget saying things like, “That’s not what happened, and you know it,” or “Maybe you should have thought of that before you…” or “I’ll go to jail first before I …? or “Why are you doing this to me,” or “Don’t get all emotional on me.” Instead, say things like, “Tell me more,” or “Please help me here; I’m trying to understand.”

If your settlement conversation takes a wrong turn, try to stop or reverse things. Say “This means a lot to me, but I’m afraid that I have somehow derailed myself. I would sure like to start over again; is that ok? I promise not to go in the same direction that I just did.”

Stay away from emailing and texting. Never attempt to conduct settlement discussions with your spouse via email or text messaging. Divorce negotiations are extremely delicate, and they require all the warmth and sincerity we can transmit. Face-to-face conversations provide the best opportunity to get our spouse to hear us. Email and texting are the same as trying to negotiate via telegram, and the telephone isn’t much better. The telephone, at least, does allow for some of our vocal tone variations. However, on the downside, many people tend to become braver, meaner, and more confrontational over the phone than they would ever be in person.

Don’t make the first concession. Studies indicate that doing so is rarely appreciated and often leads to expectations of further concessions.

Don’t ask for a specific concession because that sounds too confrontational. Instead, say something like, “If I must give a little in order for you to give a little, I will do so. I hope you will reciprocate so we can bring this thing to an end. We really don’t want to be arguing over the same issue a year from now, do we?”

Don’t say YES to a first offer, even if you think it’s a good deal. Doing so leaves the other spouse with thoughts that they offered too much. You want your partner to feel good about the negotiations and not be kicking themselves later. They will always be part of your life, and you don’t want your ex harboring angry feelings about not getting a better deal.

Don’t say no too quickly. Allow sufficient time to pass before you respond. If you want your spouse to give serious thought to what you want, you have to give at least the impression of giving serious thought to what your spouse wants.

Don’t start tough and refuse to budge.

Don’t start in the middle and refuse to budge. Create negotiating room by starting somewhere between the middle and your dream result. Then move in small increments that always get smaller.

Don’t start at your bottom line. Inexperienced negotiators feel more comfortable doing so but try to resist the temptation because it leaves no room for compromise. It leads to deadlock, and deadlock leads to a court battle.

Don’t ask for something outrageous unless you find joy in paying outrageous attorney fees. Divorce wars don’t pay; you do.

Finally, always keep in mind that you cannot be persuasive until you first show that you are persuadable.

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Richard and Kari are staunch advocates of the non-court approach to divorce, and are also active and seasoned litigators with over 80 years of combined trial experience in the Illinois divorce courts of Cook and DuPage counties.