• Cliff Coulter

Negotiating your contested divorce

Updated: May 13

Always negotiate process over substance

Do not get caught up in the emotional people issues of your divorce. First, ask questions like:

  • How long does it typically take to negotiate a divorce?

  • Who are all the people that need to be involved before this divorce can go through (QDRO attorney, GAL, experts, mediators, etc.)?

  • What are some factors that might speed things up? What are some factors that might slow down this divorce?

  • Who is going to be in the settlement negotiations?

  • What issues will we be discussing?

  • What about the issues that we care a lot about? When will we touch on them?

  • Where are we today? Where do we want to go?

Negotiation tactics

  • have interactions and engagements that achieve better understandings and agreements

  • turn our adversaries into allies

  • reward good arguments

  • know what happens to you when there is no agreement

  • negotiate process before substance

  • let you know what is normal

  • ask questions. we above all are here to learn as much as we can (and we add 10 more questions to every list)

  • know why is more important than what, and the underlying motivations

  • think about all the things that can go wrong and our weaknesses

  • make the first offer, to control the frame, expectations, and the reference points

  • tell the story, the rich narrative, that goes with your offer

  • make sure your concessions come off as wise, smart and nice

  • Do not do mindless haggling - negotiate multiple interests simultaneously with wise trades. Have comprehensive, package offers and counter offers

  • We can do option a, b, or c. They may be more flexible on certain terms. I know where we need to get. I am flexible as to how we get there.

  • Initially reactions matter. If it is a ridiculous offer then immediately reject it. Be ready to respond to something that may come up. Think in advance about the signals you want to send.

  • Understand and respect their restraints. Where are their hands truly tied.

  • It does not do you any favors to see the other party as irrational. People you are dealing with are going to be rational. They usually have interests that we are not appreciating or they are ignorant to what your value is. Saying yes may make them look bad or give a bad precedent.

  • write their victory speech for them. Don't lose cite of the fact they they have an audience. How can they say and still be able to declare victory to their team. How will they pitch this later that they won.

  • If you get an ultimatum then your response must be to simply ignore it. I'm going to pretend you never said it. I will address everything, except the ultimatum. If it is a real ultimatum, they will keep repeating it, but often it is not a real red-line for them.

  • You can also reframe it as a non-ultimatum. Given where we are today, this may be hard for this to happen. Give them some outs.

  • Should you make ultimatums? Only if you will follow-through on it. Only if there is no other way to get what you need. People do not like it when you aggressively tell them what to do.

  • It's ok to not get a deal. But always get an explanation as to why the deal did not go through. Ask, "imagine a world where this deal went through. Paint me a picture. What would that world look like?"

Conflict Mediation

Three days into this process you will probably hate each other more than you ever have. The emotions will get stronger, and you will want to quit the process. The process is more like a roller coaster, which is the normal process. Things will go wrong. Here is what is normal.

Temporary Orders

Motions may be filed for temporary relief at any point during the litigation. These order may address interim child and spousal support (maintenance/alimony), parenting, allocation of personal property and debt obligations, and residence issues.

Discovery

Parties may exchange basic discovery such as interrogatories (questions to be answered in written form) and requests to produce documents, Requests for admission, and deposition notices.


The length of the discovery will depend on the complexity and number of issues in dispute. Discovery Period Ends within the deadline for discovery cutoff in the case schedule or generally about a month before trial.

More complicated discovery may occur. For example, experts may be appointed by the court or retained by either party. The expert may appraise property, value a business or pension, or perform vocational, medical, or psychological exams.


The court can also appoint a parenting evaluator called a guardian ad litem to complete an evaluation in to the best interests of the children. The guardian ad litem will likely produce a written recommendation for child custody, visitation, and parenting time. Appointment may occur as part of the motion for temporary orders. The parties may use the recommendation to prepare final orders or argue with the recommendations at trial.

Do you need a trial?

If the parties do not settle by direct negotiation then mediation or arbitration must be scheduled. The parties submit settlement proposals prior to mediation.

If still no final settlement is reached, then the parties will prepare for trial.

Then the trial will focus on the issues that have not been mutually agreed to by the parties in writing.

What happens at trial?

The judge will hear sworn testimony from the parties, experts and other witnesses. The lawyers will present trial briefs and documentary evidence to support all claims. A decision will be made by the judge on all the disputed issues and a final decree will be issued.

Documents Needed In Order To Finalize Your Divorce

Depending on your case you may need:

  • Findings and Conclusion About a Marriage

  • Final Divorce Order

  • Parenting Plan

  • Child Support Order

  • Washington State Child Support Worksheets

  • Residential Time Summary Report

  • Certification Sheet

Quit Claim Deeds

Should you do a quick claim deed and have your spouse do a refi to remove your name before you divorce? Typically, no, even if you plan to do an uncontested divorce.

For example, if you sign a quitclaim deed before you complete a settlement agreement, then you will have difficulty forcing your spouse to later sell the property to remove your name from the mortgage.


Furthermore, you divorce or separation decree may find that the spouse with title to the property must sell the property to pay off the mortgage. Typically the best case scenario is for your spouse to refinance before the decree is finalized because so that your spouse is better able to qualify for a refinance. You may decide to deliver the deed to escrow to be used only if the closing of the new mortgage is completed.

Appeal

Either party can file an appeal to the decision. If neither party files an appeal to challenge any part of the decision, then both parties are bound by the terms of the Judge's decision.

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