Is it Fairness?
Most people say they want a fair divorce.
The problem is that there is no objective definition of fair.
You can ask your lawyer what would be a fair outcome for your divorce, but the problem is lawyers are biased. They base fairness on what they’ve experienced the courts do in previous cases.
You can ask your friends and family, but they are likely biased as well. They are in their own experience and sharing what they believe is “fair.” “Fairness” is nebulous. It’s a fuzzy idea. So rather than focus on the idea of fairness, focus instead on achieving your needs.
What Do You Need?
Recently courts have established concrete formulas for child support and spousal support. These formulas, though, were not designed to achieve a just result for each party but rather to help courts process divorce cases more efficiently. A more favorable approach to resolve child support or spousal support, (also referred to as maintenance in New York state, or alimony in most places) is to look at the needs of the parties to determine actual reasonable expenses.
When a prospective client comes into my office for a consultation, most of my focus is on learning about their needs. It is no easy feat to be clear with your needs at the onset of your divorce. It is likely the first time you are considering yourself and your independence. I see clients get hazy about what they need because they are flooded with emotions and overwhelmed with the changes that lie ahead.
Getting Lost in Hopes and Dreams
Some clients feel that their lives will be better when they get divorced. They fantasize that once the divorce papers are signed, they will be new and improved. More time for socializing. More financial independence. The truth is that although people can do better in post-divorce life, those people first must go well beyond their comfort zone to create a life that works for them. They quickly find out how hard it is to reach their goals in a contested divorce. And even when they manage to define their goals, they learn that changes in the future can make what the things they fought for more onerous or insignificant.
For example, you can work hard to get what you think is a fair deal on the child support you’ll pay, but if you lose your job, and think that it will be “easy” to go back to court to revise the hard sought-after amount downward, you may be in store for a nightmare. Getting a court to lower your child support payments can be a major challenge. Or maybe you agree to a certain child support number thinking you can make it easily on your income and the support, but then you realize you have more expenses than you thought and you’ll have to struggle every month just to cover your own bills.
So how do you get what you really need? Here are three suggestions:
Give In to Their Ego
High-conflict divorce can be a nasty game if you fight fire with fire. You need to be smart and tactical, not reactive. One basic rule: No one is going to willingly give you anything in a high-conflict divorce unless they feel it is in their best interest. The way to cut through the noise to get what you need is to give the other side the illusion that they’re getting something, or that they’ve won. For example, in negotiating money issues, you do this by using a more aggressive (high) number as a starting point for bargaining and then back away from this number slowly, so it appears you are leaving money on the table and comprising. Of course, this approach, and your “anchor number,” must be in the range of reason. If your “aggressive number” is obnoxious (which is another one of those grey areas), you may be in for protracted litigation if the other attorney knows what they are doing and will not back down.
When I started out, I thought I could just cut through the noise and give a reasonable number. The honest part of me just wanted to be straightforward and fair, and not play games. But the problem was, my reasonable number was used by the other side as a starting point they could whittle down, so I wound up negotiating against myself, and compromising from the number I thought was reasonable toward a lower number that I thought wasn’t reasonable at all. I didn’t realize I had to reward the other side emotionally before they would agree on a reasonable number. The point that was impressed on me is that people are not rational. You have to give in to the other side’s ego by appearing to give them what they want: a win. A compromise.
Call In a Financial Expert
When people think of getting married, they think of jewelers and florists and wedding venues and Instagram posts. When people think of divorce, they only think of lawyers. What I suggest you do as you head for a high-conflict divorce is to think of assembling a “divorce team,” even before going to a lawyer or at least before you go to court. In addition to your lawyer, you’d be wise to consult a financial planner at the beginning of the process. Whether you’re afraid of the numbers that show what you have and need or already have a CPA, the point is to realize that even the smartest person becomes not so smart when their emotions run high. You need an objective eye. So sit down with a financial planner. Preferably, a Certified Financial Planner or Certified Divorce Financial Analyst, and do an assessment with them. That meeting should give you more clarity on what you need.
Talk Parenting with a Pro
Even if what you need is not financial in nature, you still need to know what you’ll need to have a smooth life after the divorce. To work out parenting issues, I suggest meeting with a professional who handles forensic custody evaluations for the courts. That person can tell you first-hand what the process is like in a custody determination. This insight will give you a better understanding of what you need.
For example, say you want sole custody because you want to make all the decisions about your child, with no input from the other parent. If that’s your position, you need to have a frank discussion with yourself. Ask yourself this question: if you died, do you believe the other parent would appropriately raise your children? If the answer is yes, you most likely have joint custody situation and not a sole custody situation. But what if you say you still need sole custody because you cannot deal with your spouse? I’d advise you to consider a creative solution to this problem, something like spheres of influence—where one parent has final decision making in one area (say education) and one parent has the final say in another area (say medical).
What Are You Willing to Do?
The final piece of the puzzle to get what you really want (i.e. need) in your divorce is to learn if you have what it takes to achieve your long-term divorce goals in the face of adversity. My best clients have the ability to reach another gear when the going gets tough. I think the reason for this is that they are so motivated by their WHY that they are willing to do what it takes to overcome the WHAT. The why could be their desire to be the primary parent to raise their child in a healthy and happy home with boundaries and putting education first, instead of having the child being raised in a more permissive environment where R-rated movies and 11 p.m. special events are acceptable activities for 8-year-olds.
The what—as in, “What will it take to get this?”—could be committing three years of your life to a process where you will have to miss work often, drain savings or go into debt. It could be meeting with a custody forensic evaluator who will take a fine-toothed comb to your life. It could mean being in a hostile environment just because your spouse is under the belief that his way is the right way, although all experts (and common sense) disagree.
If you do not have that extra gear ready to go and you give in to the temptation to “escape” the pressure when the going gets tough, my heartfelt suggestion for you is to give a good-faith effort to mediation, or collaboration. If you are forced to litigate, hope you either get a wise judge, who will act as a quasi-mediator/arbitrator to settle your case and move you on with your life, or an attorney who focuses on resolving high- conflict divorces tactfully.
Whatever your situation, take the time at the outset to honestly and objectively figure out what you need. Then know what you’re willing to do to get it. From there, you can make a workable plan that won’t cost you your sanity. And you can get what you really want.