In a negotiated divorce, each party retains their own legal counsel to work out a divorce agreement.
With negotiated divorce, each party retains their own legal counsel to work out a divorce agreement.
In a standard negotiated divorce, each party hires an attorney, who then acts as the client’s legal and bargaining representative for the purposes of creating a Stipulation of Settlement — a document which sets forth the solutions to the issues of property (homes, vehicles, savings, and retirement accounts), custody, child support and visitation, and spousal support. When legally “attached” to the final Judgment of Divorce, this document becomes the ground rules for your post-divorce life, as well as the underlying legal source for any disagreements or circumstances that may arise after the divorce is final.

In the negotiating process leading up to the settlement, the clients rely on their respective attorneys to represent their positions, both legal and moral, regarding each issue, and to come up with an agreement both parties can live with. A negotiated divorce agreement must fulfill basic legal requirements, but can also allow the parties to make decisions that are more responsive to their particular needs and wishes than the average “cookie cutter” decisions made by the court.

Negotiation is almost always better than litigation

At Breiter and Gura, we make no secret of the fact that we favor negotiation over litigation. We feel strongly that a negotiated settlement — whether created by the standard model, or through collaboration or mediation — is almost always preferable … for both parties. In a negotiation, everyone makes some concessions in order to arrive at a settlement. When the resulting agreement is finalized and signed, both parties know exactly the terms under which they will live, rather than waiting for a judge to make those decisions for them.

Negotiation is more cost effective

In terms of the economics of negotiating a settlement, time spent (and therefore billed) in negotiations has full value for the client, because the client pays only for time actually spent trying to reach a resolution of their matter. On the other hand, if either party chooses to litigate, the cost of accessing the court system for conferences, hearings, and trials rapidly increases the client’s expenses, as hours of billable time are often spent just waiting to gain access to the judge.

Additionally, even when the case is ready for trial, scheduling that trial can mean a waiting period of many months, during which many of the marital problems which initiated the divorce action, as well as the economic pressure of continued legal bills, will continue to plague both parties. (See Litigation for more information.)

Two big reasons to choose negotiation

Ultimately, the number of hours necessary to negotiate a settlement is, in almost every circumstance, less than the number of hours necessary to try the same matter in court. That means less expense for the client. And a divorce agreement produced through negotiation — while it may well contain concessions on the part of both parties as with any successful contract — will be a mutually acceptable document instead of a surprise decision by a judge.