Negotiation Strategies

Clients often ask me what they should say during settlement discussions in order to be effective and persuasive.  I always tell them that they should first do their negotiation homework.  I mean that, before the negotiation, they must identify the topics to be discussed (i.e. “alimony, child support, and time-sharing”).  Then, for each topic, the client must determine their range of acceptable solutions.  For example, the non-custodial parent might decide that the minimum s/he will pay is the amount determined by the child support guidelines, and the maximum is the child support guidelines plus half the cost of extra-curricular activities, half the cost of summer camp, 70% of SAT tutoring, and 70% of college tuition.

So, once you’re at the negotiation table, how do you get your spouse to agree to a solution that is within your range of agreeable solutions?  When you state your proposal to your spouse, substantiate it with three supporting arguments.  Psychologists have found that people respond well to arguments grouped in three.  For example, you could state, “I am only willing to pay child support in the amount of $1,000 per month for the following three reasons.  First, $1,000 per month is $150 more than the child support guidelines propose.  Second, I give our child an allowance of $15/per week directly to her, which she uses to buy accessories and snacks.  Third, I am giving you 60% of the value of the marital home.”

And what if your spouse has a negative response to your proposal?  Let’s say your spouse’s vitriolic response includes personal attacks, curse words, and heightened volume.  To respond to vitriol and deescalate the conversation, use “I” statements.  An “I” statements takes the following form: “I feel ______ when ______ because _______.”  If your spouse attacks you, you might say, “I felt attacked by that statement because it was personally hurtful and because I don’t think it moves us toward an agreement.”  You will be surprised at the effectiveness of an “I” statement response. 

These strategies take practice, but they will keep you calm and confident and ultimately make your spouse more likely to agree to your ideas.  They also work in non-legal negotiations!

Merger vs. Survival

Separation agreements often include a merger or survival clause.  This legalese has significant meaning.

A merged agreement becomes one with the divorce.  In other words, a merged agreement no longer stands as a separate contract; it is part of the divorce.  Since a merged agreement no longer stands alone, one cannot pursue contract remedies to enforce it.  Instead, one must file a motion for contempt of the divorce order.

A surviving agreement, on the other hand, continues to stand as an independent contract.  Thus, to enforce a surviving agreement, one may employ ordinary contract remedies, such as breach of contract.  Unlike merged agreement, surviving agreements cannot be modified by the ordinary standard of a “material change of circumstances.”  A higher standard applies for changing surviving agreements. 

What if I want to remove my child from Massachusetts after a divorce order is in place?

If you want to remove your child from Massachusetts, you should first seek the consent of the other party.  If the other party fails to consent, you must take the matter to the court.

The court will first consider the best interests of the child and whether a move provides the child with a real advantage.  The court will consider other factors as well, such as whether there are sincere motives for the relocation and whether the removal might seriously hinder the relationship between the child and the other parent.  The court is unlikely to authorize a removal simply because the removing parent is the primary custodian.  Instead, the court will consider the full picture to determine whether the removal is in the child’s best interests, will damage either parental relationship, or will provide a real advantage to the child.