The art of negotiation is essential in contested divorce cases as well as other contested family law cases. Negotiating is vital because you want to:
- Know what your client wants, and
- Know what your client can afford.
Knowing what your client wants takes a meeting with them. You may have to meet several times to know what they truly want and their bottom line on particular issues. Getting to know what your client wants from this case takes explaining the law and what they’re likely to get from a Judge if they took the case to trial.
Why Is Negotiating A Settlement So Important?
Let’s look at this question through the lens of spousal maintenance (also known as alimony). In New York, there is a calculator where we input the husband’s and wife’s income, and the result is a “presumptive” amount of maintenance: www.nycourts.gov/LegacyPDFS/divorce/Calculator.pdf
In many cases, the attorney wants to discuss the best result a client can realistically hope to get if they take their case to trial and win. Then, you want to discuss what that number will look like if they lose at trial – because winning just doesn’t happen in some cases.
Sometimes, you’ll take a case to trial and you won’t get the ideal number; you’ll get something between. So, the question then becomes, do you want to spend tens of thousands of dollars in trial costs, only to hear that the Judge has awarded you less than the presumptive maintenance amount?
So, in the art of negotiation, you must understand what your client wants, what they can afford and what their “settlement range” is. Most people don’t make hundreds of thousands of dollars and can’t afford to pay a good divorce attorney $30-50,000 or more to take the case to trial.
If that’s the case, one should tell one’s client, “Yes, I can be aggressive; that’s not a problem. Unfortunately, we can’t afford for me to be aggressive, so let’s take a step back and discuss how we want to approach the other side.”
Furthermore, you must know what will play with the other side. Negotiations are not a matter of just going to the other side and then coming back and discussing it with your client.
Suppose you say, “I want $2,000 a month in maintenance.” So, I go to the other side and say, “My client wants $2,000 a month in maintenance. Period. End of sentence.” That’s not the art of negotiation. You’re setting forth an amount but not providing any justification for the number.
So, if you want to sell that point to the other side, you must justify why you are giving that number. If the other side responds by saying, “We’re only willing to give $500 a month in maintenance,” but they justify that amount, then I can take their offer back to you. Then, we’ll respond to their justification with our own reasons.
This is what negotiation is about: going back and forth to see if you can reach a middle ground between the two positions. If you can reach that middle ground, you can settle. If you can’t, then you take it to a Judge.
For more information on the Art of Negotiation In A Contested NY Divorce, an initial consultation is your next step. Get the information and legal answers you seek by calling today at (347) 797-1188 | (914) 362-3080.
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