Tag: Divorce

Taking the First Step in Negotiations

Posted by Sharon O'Day on with 1 Comment

baby first step

Have a bias toward action – let’s see something happen now. You can break that big plan into small steps and take the first step right away.

Indira Gandhi

For better or worse, we each have to negotiate all the time.  Let’s say you have a problem that needs to be resolved.  You may have a disagreement with your sibling about how to care for Dad, or a conflict with your business partner about the direction the business should take.  You know there is a conflict and you want to resolve it before it gets worse.  Or, perhaps it is not a problem but rather an opportunity.  You have applied for a job and must meet with your prospective employer to determine what the terms of your employment will include.  Or, perhaps you want to buy a car or a house.  You know you have to bargain but the idea fills you with fear.  In all of these situations your best option is to negotiate a strong deal.  Very few of us have ever had a real class in negotiations so the mere thought of bargaining makes us a nervous.  And yet we are faced with the opportunity (or saddled with the burden) of negotiating on a regular basis.  This series of articles looks at the steps to take to effectively negotiate in any situation.

We have identified the six steps to effective negotiation: (1) identify the interests and positions, (2) Consider both side’s options to resolve the issues, (3) Research everything, (4) Establish the ground rules, (5) Bargain: Look for overlap and ways to resolve the issues that best meet the most concerns of the parties, and (6) Memorialize the agreement.  Each of these steps requires a certain amount of work and skill.  But with the right amount of effort you can be prepared to effectively negotiate in any situation.

The first step is to understand the difference between positions and interests and then to identify each in your situation.  The easiest way to consider interests and positions is that the positions are the “what you want” of the problem and the interests are the “why you want it”.  Positions are usually easy to identify.  I have represented many people in divorces and it is not unusual in the first meeting to hear “I want the kids to live with me most of the time, I want my ex to pay me child support, I want alimony of at least $5,000 per month and I should get half of all the stuff.  You can do that, right?”  In a job negotiation the prospective employee may be thinking “I want $55,000 per year, good health insurance and a 401(k)”.  The seller of a house may be thinking “I must get at least $300,000 for this house.  That’s my bottom line.”  All of these are the “positions” of the people entering the negotiations.  The “what” I want.  Positions are usually stated in “black and white”.  They are often stated as “bottom line” places.  And because they are stated as positions they do not allow flexibility.  Either I get what I want or I don’t do the deal.

Contrast this with interests.  Interests require you to look at “why” you want “what” you want.  In the case of my divorce clients, I would often dig deeper to learn my client’s real interests.  These may be a fast and amicable divorce with minimal disruption for the children and security for the family at the end.  The “why” question will get to the bottom of the positions to find the interests.  If I ask a parent in a mediation “why should the children live with you most of the time” I may find that it is because the parent perceives that they were the hands on parent that always helped with the homework and attended all of the school functions.  I might also learn that this was one of the sources of anxiety in the family and that the parent would love it if their spouse would become more involved in the children’s lives.  We may now have a new way to resolve the issue of parenting time if the other parent agrees to become more involved in the daily parenting activities.  Similarly, with the negotiations for a new job, when you consider the “why” question for the position stated above, it may become clear that the reason that the person set the salary where they did was because they had parenting responsibilities that required them to pay a care giver for the afternoons, but a flexible work schedule may allow them to take a slightly lower salary while still meeting the needs of their family.

Knowing your “whys” is often the most difficult but critical part of the negotiation process.  It is difficult because we become emotionally invested in our “whats”, that is our positions.  It is easier to think in black and white.  But to quote the title of a strangely popular book there may be “50 shades of gray”.  It is by answering our “why” questions that we become open to the flow of negotiation and see opportunities that exist outside of our positions but that will meet our needs.  The answer to the why questions, the identification of our true interests, allows us to explore possibilities that meet our needs in ways that we may not have considered.  It also gives a justification to our positions that are truly immovable.

It is not only important to know our own interests but also to become familiar with the other sides interests.  For the seller of a house the bottom line they want for the house is $300,000 (their position) and the buyer may not want to spend a dime over $270,000 (their position).  This would normally mean the end results was “no deal”.   But a savvy real estate agent may be able to structure a deal that could work for these two people if the agent is aware of the “whys” for each side.  If we know that the seller has the ability to take back the mortgage on the property and this will provide them with a stream of income that they wouldn’t otherwise have and the seller is willing to pay a bit more on the price for favorable terms on a mortgage that they wouldn’t otherwise qualify for than there may be middle ground.  Or perhaps the buyer is willing to pay more if the house has a new roof and the buyer has connections that will allow them to make some repairs and replace the roof at a reasonable cost.  These solutions may meet the buyer and sellers interests more than the intractable positions they originally took.

The “whys” in negotiations are often our primal emotions: security, safety, trust, happiness.  When someone says that they have a bottom line dollar number and will not take/offer a dime more/less, this is rarely the case.  When I still litigated divorces, I often entered negotiations where my client had said something like “I will not accept a dime less than $3,000 per month in alimony”.  But after hours of negotiations when the “final” offer comes from the other side that they will settle for $2,200 per month in alimony but will agree to more than half of the assets coming to my client, and pay for the child’s private school so long as they receive the tax deduction for the child, suddenly a deal is done.   That is because both sides had their interests (the whys) met by the deal.  Once we moved from a specific number to look at the bigger picture of tax consequences, special opportunities for the children, and overall family security we were able to meet the needs of everyone.

So, if you are facing a negotiation take a moment to plan.  Identify what the issues are that must be addressed.  Set an agenda for the negotiations.  Then think a bit about what you want and why you want it.  Next think about what the other side most likely wants and why they want it.  You have now identified the issues, the positions and the interests.  The first step is done and you are ready to start to explore the possible resolutions as part of step two.

PEACEful Divorce: A checklist for dissolving a marriage

Posted by Sharon O'Day on with 1 Comment

sito_Peace_Flowers“Give Peace a Chance.”  John Lennon

With only a brief review of this blog or my company website (www.professionalresolutioncenter.com) a visitor can tell that I am all about finding peaceful ways to resolve human conflict.  My company’s moto is “Peaceful Resolution to Complex Issues”.   But in the case of this article, I am not talking so much about the method of dissolving a marriage as I am about the checklist of things to consider when considering a divorce.  There is a certain irony to using the acronym P*E*A*C*E to organize and prepare for your divorce.  Yet it is actually the tool used to teach new lawyers and judges about the system to process a divorce (at least in Florida).  I am a strong proponent of having a peaceful divorce by using either mediation or collaborative representation to avoid the adversarial process of litigation.  But regardless of the process you employ, you can use “PEACE” to ensure you have covered your most important issues.  The checklist looks like this:

P arental Responsibility

E quitable Distribution

A limony

C hild Support

E verything Else

P is for Parental Responsibility:

The first thing you should consider is Parental Responsibility (unless you don’t have children then you can obviously skip this step).  While there are a number of sections of the Florida Statutes that address parenting issues, the section that addresses time sharing is found at Florida Statute 61.13.  The two main aspects of parental responsibility are (1) who makes major decisions affecting the children and (2) where do the children go to sleep each night.  These are two distinct issues to be considered as the children may sleep the majority of time at Dad’s house, but both Mom and Dad may have an equal say in whether Johnny gets braces or Taylor gets to go to band camp in Georgia.  In Florida it is most common for the parties to have “shared parental responsibility” wherein the parents have an equal say in the major life decisions affecting the children.  However, in some cases the parties may agree, or the court may order that, in the case the parties cannot agree on a decision after consulting each other,  one parent will have ultimate decision making on certain issues like education or medical care.  In extreme cases the court may order that one parent have sole decision making, that is they need not consult the other parent when making decisions affecting the children.

The second issue to be addressed is the time sharing schedule for the children.  Florida and many states have done away with “custody” and “visitation” and moved to the more realistic and equitable status of time sharing.  If a judge is to determine a time sharing schedule they are told to consider twenty factors to decide what schedule is in the best interest of the children.  Clearly, the parents, who know the children and the situation of the family are in a better place to determine what schedule will work best for them.  Samples of the Florida Supreme Court and Twelfth Judicial Circuit Parenting Plans can be found here.

E is for Equitable Distribution

The next thing to consider is how the parties will divide up their assets and debts.  Again several areas of the law address these issues, but the main provisions are to be found in Florida Statute 61.075.  If the court is to determine the equitable distribution, then they must first determine what is or is not marital assets and liabilities.  There are countless cases that discuss the finer points of what is and what is not marital (i.e. I owned a house before the marriage, but during the marriage you helped me put on a new roof and remodel the kitchen and my pay check was used to pay the mortgage, is any of the appreciation of the property marital?)  The statute helps to answer these questions but often, in complicated cases, if the parties cannot agree, then these issues get turned over to the judge for a decision.  After there is a determination of what is martial and what is non-marital, then the marital items must be “equitably divided”.  The statute says that the law starts with the premise that the division should be equal unless there is a justification for an unequal distribution based upon ten factors, including the catch all “any other factor necessary to do equity and justice between the parties”.  You can imagine how this can be fought out if the parties don’t reach an agreement.

A is for Alimony

The third item on our divorce checklist is Alimony or spousal support.  The rules for alimony can be found at Florida Statute 61.08.  This is probably the most hotly contested area of any divorce.  However, with careful consideration  and some creative thinking, it is very possible to come to an agreement on spousal support and avoid litigation.  Basically, as of July 2013, there are four kinds of alimony in Florida: (1) bridge the gap; (2) rehabilitative; (3) durational and (4) permanent periodic.  (If you are reading this after May 2014 this entire section might have changed as there has been considerable pressure to change the alimony statute in Florida for the past several years.)  For purposes of determining alimony the marriages are divided into three categories depending on their length: (1) short term marriages are any less than seven years, (2) medium term marriages are any between seven and seventeen years and (3) long term marriages are any longer than seventeen years.  First there must be a determination as to whether either party has a need for alimony and then a determination if the other party has an ability to pay alimony.  If there is a “need and ability to pay” then there must a determination as the amount and type of alimony.  For this the Court considers the length of marriage and ten factors (including again the lovely catch all “any other factor necessary to do equity and justice between the parties”.)  There is currently no formula to use to determine how much alimony should be paid and for how long.  It is easy to understand why this issue has become perhaps the most litigated issue in any divorce.

C is for Child Support

The determination of child support is one of the more straight forward areas of divorce law as it is based upon “guidelines” found at Florida Statute 61.30.  While there may be some dispute about the income of each parent based when a parent is unemployed, under-employed or self-employed., once the actual income is decided, then calculating child support is a matter of filing in a formula and seeing what comes out the other side.  The form used to calculate the formula can be found here.  While these are guidelines and may be modified by agreement or the court, it is important to remember that the statute is clear that parents have an obligation to support their children and this is the area where the courts exercise the least flexibility.   Under child support the parties should also consider such factors as which parent will supply health insurance for the children and how will uncovered medical bills be paid?  How will the parties divide the Federal Tax Deduction and Earned Income Credit for the children?  Also, the parties may be able to come to agreements about child support issues that the Court does not have authority to consider under the statute such as issues of support of children while attending college, payment of tuition for college, and how the parties will divide the payment of extra-curricular activities.

E is for Everything Else

So, after considering all of these issues, what else is left?  The E for everything else.  This is where the parties or the Judge can decide which party will pay for the attorney fees (consider Florida Statute 61.16), will the Wife have her name restored to her maiden name, do there have to be additional orders from the court to divide certain retirement plans or to re-title property, etc.

The order of the issues in the PEACE method is also important.  Alimony can only be determined after  Equitable Distribution because how the assets are divided (family business, investments, rental property) may affect the income that each party has available.  Child support can only be determined after Alimony because child support is based upon the proportional share of the family income held by each parent and if alimony is provided then this will shift the proportions of overall income.  And clearly “everything else” comes after everything else.  So, use the checklist in the order it is provided.  Ignore anything that does not apply to your family (no children then no parental responsibility or child support) and consider each factor to come to an equitable resolution of your case.

Hopefully this article will help you, the dear reader, understand some of the basic factors to consider if you are considering a divorce.  Hopefully it has also helped you realize why advice from a well qualified attorney can be so valuable if you find yourself in a situation where a divorce is happening.  This article is not meant to take the place of the careful advice of an attorney trained in marital and family law.   Whether you decide to proceed in a collaborative, mediated or litigated divorce, the PEACE outline provides a short checklist of the issues to be addressed.