Birthday cakes, craft time, school projects–a lot of really good things can happen around the kitchen table. However, negotiating your divorce is not one of them.
It’s tempting to want to negotiate your own divorce. Even though you’ve hired an attorney to represent you, somewhere in the back of your mind, you think, “We can work this out on our own.” So, you and your spouse start talking about various aspects of your divorce in hopes of having the much sought after amicable divorce. Surely your lawyer will be happy you guys reached an agreement, right? Unfortunately, that is not always the case. “Kitchen table” agreements made without the benefit of legal advice can make your divorce much more difficult, and here are five reasons why:
1. You may agree to something you later regret, making settlement more difficult.
For divorcing parties who are not in a high conflict situation, it is only natural to have conversations about the issues in your divorce. Unfortunately, your spouse may bring up things that you have not yet thought about or discussed with your attorney. The conversational nature of the discussion puts you on the spot, leading you to commit to things that, had you talked to your lawyer first, you would never have agree to do. Once you’ve “agreed” to it verbally, however, it is very hard to convince your spouse that he or she is not entitled to the very thing you agreed to do without the benefit of legal counsel. A party’s unrealistic expectations prevent many divorce cases from settling, and agreeing to things before you have had a chance to understand all of the legal implications can create unrealistic expectations in the other party. What sounds “reasonable” when everyone is getting along may not work well when things get less amicable down the road. Your lawyer will know how to put provisions in place that will protect you whether you and your spouse are on good terms or bad. You’re paying for your attorney’s expertise. Don’t let your own actions deny you the benefits of that knowledge.
2. You may increase your own attorneys’ fees.
If you’ve made settlement more difficult by agreeing to things verbally that you later regret, your attorney will have to work harder to undo the damage – and you will have to pay him more fees as a result. Your attorney also has a specific legal strategy in mind in order to assist you obtain your goals. Reaching piecemeal agreements jeopardizes that strategy and the goals you hope to reach. It will take more time for your attorney to recraft the entire agreement around these piecemeal agreements than it would for her to design the entire agreement without your “help.”
3. Your emotional state may work against you.
Even if you are the person who wants the divorce, your emotions are at an all-time high, and you are not thinking as clearly as you would in an arms-length business negotiation. You may have reason to feel guilty that you are wanting the divorce, which may lead you to agree to things that, after the dust settles, you will realize are unfair to you and not good for your children. You may be hoping to win your spouse back and mistakenly think that, if you just give them what they want, they will love you again and want to come home. You may also be lulled into thinking that the two of you are still a team and can work things out amicably. It’s easy to let down your guard and take your spouse’s statements at face value. You want to trust that your spouse is being honest with you about his income without any additional verification. You believe her when she tells you what the house is worth without getting an appraisal. You forget that a divorce is actually a lawsuit and that, whether you are on friendly terms or not, you and your spouse have conflicting interests. Agreements revolving around your divorce should not be clouded by emotion. Sitting around the kitchen table in the home the two of you formerly shared is hardly an emotionally neutral setting. Your attorney is not emotionally involved in your case; therefore, her judgment will not be clouded by guilt, emotion or misplaced trust. Plus, she can draw on her experience to both issue spot and weigh the pros and cons of various proposed solutions.
4. You don’t have the benefit of your attorney’s advice.
You wouldn’t build a house without hiring an architect; or worse, hire an architect, then proceed to build a house without using his plans. Entering into agreements with your soon-to-be-ex without the benefit of the legal counsel you hired is no different. An architect’s job is to design a structurally sound house that is within your budget and that suits your needs both now and in the future. Similarly, your attorney’s job is to structure your divorce in a way that meets the current and future needs of you and your kids. Divorce is something that can impact every aspect of your family’s life for the rest of your life. How it is structured and every detail is of the utmost importance. Matters as crucial as this are best handled by an experienced professional.
5. Your spouse’s request to “work it out on your own” may be a deliberate attempt to deny you the benefit of counsel.
Everyone wants to think that their spouse just wants to be amicable and do what’s best for everyone, including the kids. Sometimes this is true, and sometimes it is not. We commonly hear from clients that their spouse is telling them they do not need a lawyer, or that the lawyer just wants to take all their money, etc. Many clients are fooled into thinking that their lawyer is the opposing party, not their spouse. It is critical to understand that, in every divorce, each person has an agenda that he or she is trying to push through, and pressuring a party at the kitchen table when her lawyer is not there to be the voice of reason is a tactic commonly employed by the less scrupulous to pressure the other party into agreeing to what they want.
Don’t fall into these traps. While we would rarely tell a client not to talk to their spouse about property issues and what they think is best for the kids, the key is not to agree to anything without the benefit of talking to your lawyer about the specifics first. Do more listening than talking. Your lawyer is waiting in the wings to advise you and guide you in the right direction. Once you have the benefit of that advice, then it’s time to come to an agreement.