Going through divorce and separation can be an emotional, painful, overwhelming, time-consuming, stressful and, for many, a financially crippling experience. Did I mention that divorce can be an emotional, painful overwhelming, time-consuming, stressful and financially crippling experience? It is almost worth repeating because sometimes folks are so caught up in their anger, frustration and fear that they make it even more painful by doing things that sabotage their settlement or even kill it. Although these negative experiences cannot be totally eliminated, they can be mitigated, and for some divorce may become a non-event if couples can follow some simple rules.
Rule #1: Don’t Renege on Decisions Made
When I begin a mediation process with a divorcing couple, I review several divorce rules with them that I use to guide couples to a fair and reasonable settlement. One of the most critical is that once you have reached agreement on a term in your settlement, don’t renege or backtrack – that can blow up your entire agreement.
When parties enter mediation, there is typically limited or no trust at all between the parties. A key element of my process to is build trust between the parties during the mediation by having them take small steps. Those steps come in the form of agreements reached on terms during the course of the process. As they continue to agree on terms they see success, which then allows them to make bigger decisions more easily as they trust the process and each other. Once an agreement has been reached on an issue, both parties view it closed. Often it is the building block for other decisions that need to be made. If either party changes their mind, recants, or wishes to vary the term it is always viewed as a breach of an agreement. It does not matter that there isn’t a signed and executed agreement yet. The parties had reached agreement on the term and there was a mutual understanding that it would ultimately become a part of the formal separation agreement.
Rule #2: Do Not Self-Sabotage
What is self-sabotage? This is not a trick question, nor is it rocket science. Self-sabotage is simply doing something that will negatively impact you. Why I raise this, is that people are often not even aware how impactful their actions (like backtracking on decisions), comments and behaviour can be, or how it can trigger a negative reaction in someone else. In divorce situations, this awareness is further clouded by the visceral emotions they feel.
Rule #3: Do Not Breach the Trust
All the trust that may have been regained through the process is either lost or severely impaired because of the “breach.” Accusations follow, old history of former breaches of trust in the relationship are revisited, all giving fuel to emotions once again. Changing one term now calls into question all other terms that had been agreed to, especially if some of those were made as a concession to agreeing to the term now being revisited. At its worst, the other party may reject all terms and bring the negotiations back to square one. All that time and effort to date may have been wasted, and more time and cost will be expended to get back on track. Parties may no longer wish to be cooperative and instead may be just mad enough to pursue divorce lawyers and litigation.
Rule #4: Live the Commitment for Real
It is usual for folks to take a step forward and then one back. This is part of mediation as parties ride the roller-coaster of divorce. Hopefully the steps back are fewer than the steps forward. On rare occasions, a step back happens at the end of the process when the settlement agreement has been drafted and sent out to the parties for review and approval. That happened with one of my clients – an older couple who had been married over 30 years and had a very long history of “broken promises.” When the husband decided at this late stage to change significantly terms of support, already an emotional term, it was like Mount Vesuvius erupted. “Liar” and “dishonest” were some of the milder terms used by the wife, who felt her former spouse was once again demonstrating the behaviour of their marriage. Sadly, her anger and belief that her husband had no intention of honouring the mediated settlement resulted in her pursuing a divorce lawyer to fight for her. I hope they don’t end up in divorce court.
Rule #5: It is Better to Say No the First Time than to Renege Later
Parties are often anxious to get their settlement done and over with. Dragging it out is stressful and can be costly, but this needs to be balanced with having enough time and information to make decisions you can live with. I tell my clients that it is far better to hesitate, take time to think about it, and feel committed to a decision – whether a “yes” or a “no” –rather than making a decision and then changing your mind later, particularly as in the case of this client after all terms had been agreed to. Saying no allows the parties to consider other options and negotiate a different outcome. There has been no perceived breach.
I always like to give all clients the benefit of the doubt and expect that they enter into a divorce settlement negotiation with the intent to be fair and reasonable. In the situation noted above, I think the husband thought he could better the deal by raising the change late, expecting his wife would wish to avoid legal costs just to get it done. Time will tell if his was a gamble worth taking financially, and at the risk of embittering the relationship further with his wife. Did I mention they have adult children? What cost and impact do you think this will have on them?
If you have negotiated a settlement and are thinking about changing your mind, think twice. If you don’t want to be like those clients of mine, don’t say yes unless you really mean it.
Mary Krauel (CPA, CA, EMBA, CDFA) is the owner and senior negotiator of PRM Mediation.