Negotiating with your wife during a divorce is a skillful and tense combination of trust and paranoia. In another context, this was called “trust but verify.” Because every negotiation is conducted with the backdrop of going to court, you need to be extremely careful to remember that everything in the agreement needs to supported, whether it’s by documentation or witnesses.
This article assumes that your wife is of low character and basically untrustworthy. There are thousands of divorces where agreements can be made over a handshake or with a phone call, or an agreement sketched out on a napkin. However, unless you have supreme confidence in the character of your wife, don’t bet half your stuff and all your kids on it.
1. Get it in writing. Everything. If she offers to switch weekends, send her an email confirming this. If she agrees that the house can be sold, send a letter to your lawyer. If she agrees that you get the kids every Thanksgiving, have her send you a letter stating that.
2. Assume that each agreement is steppingstone to a violation. This is me being cynical, but it is too often true. Whatever is agreed to, try to put yourself on the other side and break it. If you two agree on a visitation schedule, read it once more and try to figure out – if YOU were on the other side – how could it be interpreted to restrict your time.
3. Be detailed. This goes hand in hand with #2. If you are to pay for “extracurricular activities,” does that mean “school clubs and activities that occur after school” or “any activity that occurs outside school time”? If you are to pay half of the daycare, is that a licensed daycare facility or her boyfriend?
4. Get something for everything you give. Unless your wife has shown a willingness to compromise, there is no sense in you giving up anything without getting something in return. That’s like giving the gas station a $20 bill instead of a $10, and then saying, “Keep the change. The oil companies will do something nice for me someday.”
5. You won’t get anything for free. If she or her attorney offers something with no strings attached, look harder for the strings. And if there are in fact no strings – say thank you.
6. “It’s all for the children.” Almost everything from her side will be “for the children” and almost everything from your side will be interpreted as “for the money.” If you are in fact asking for something “for the children” – like more parenting time or some of the kids’ furniture, for their bedroom at your house – write out specifically how it benefits the children.
7. Think about the consequences for each of you if the agreement is violated. Spell out specifically what happens if she doesn’t follow through on something. For example, she agrees to refinance the mortgage out of your name in 3 months. And if she doesn’t? Well, if there is no consequence in the agreement, you basically have to go back to court and see what the judge wants to do. You, however, in your agreement, can add a consequence: she agrees to refinance the mortgage out of your name in 3 months; if not refinanced in 3 months, you have authority to put the house up for sale at an agreed-upon price. And if she doesn’t agree to a consequence, then how sincere can she be about her promise?
8. Think about what if things change. The agreement that you two reach is usually heavily dependent on the circumstances at the time. For example, you and she agree that you can pick the children up after school on Friday. Well, that’s great – until summer vacation. Or you agree to pay her $75 per week for the private daycare – and then her mom moves in town and now grandma is watching the kids for free.
One of the primary purposes of reaching agreements with your spouse in a divorce is to avoid having to negotiate it again. The tighter and more precise you can make the agreement, the less you will have to deal with her in the future. Or her attorney. So spend the time to get it right now.