How Do I Start Negotiations with My Spouse?

From Clicklaw Wikibooks

Pick the right moment

It's easiest to start negotiations when everyone's emotions are relatively calm.

For negotiationIn family law, the process by which an agreement is formed between the parties to a legal dispute, usually consisting of mutual compromise from the parties' original positions to the extent tolerable by each party. See "alternative dispute resolution" and "family law agreements." to work, both people must be able to listen and talk to one another with respect. Negotiations will not succeed if the wounds from the end of the relationship are still fresh. There are a few reasons for this:

  • people who are angry aren't likely to be too accommodating and generally can't see reason even when it's staring them in the face,
  • people who are upset and sad are likely to accept a bad deal, sometimes out of remorse and sometimes out of guilt, and
  • people who are too stressed out are likely to accept a bad deal just to get everything over with.

When you've got the right moment, starting the process of negotiation can be as simple as calling your ex up and inviting him or her out for a cup of coffee at the local Tim Hortons:

"Hey look, I think it's time that we sat down and started to talk about things. I know you're still a bit upset about everything, but we really need to make a few decisions."

Say whatever you want really, there's no perfect rule that will apply to every couple. Only you know how best to approach your ex. It might help to reassure your ex that you mean no harm:

"I don't want to stop you from being a great mother/father, and I want to make sure you're there for the kids. We just need some ground rules about when we're each with the kids."
"I'm not out to screw you over. I don't want your car or your grandmother's china collection, but we really need to talk about how we can fairly split our things up."
"I want to help you and the kids get by, I know that your job doesn't pay enough. We have to discuss how I can pay for my place and my bills and how much you need. I've had a look at the Child Support GuidelinesA regulation to the federal ''Divorce Act'', adopted by every province and territory except Quebec, that sets the amount of child support a parent or guardian must pay, usually based on the person's income and the number of children involved., and they say I should pay support at $325 per month. I'll give you $350."
"This really isn't about you and it's not about me. It's about what will work best for the kids. We may not be partners anymore, but we're always going to be parents."

Sometimes nothing seems to work. In cases like that, often all that helps is the passage of time. Some people need time to grieve and get their emotions under control before they can really sit down and talk. As long as things are relatively stable and you can wait, do so. Call your ex in another four months and see if he or she is ready.

Starting the dialogue

When you and your ex are ready to start talking, start talking! Try to make the process as cooperative as possible, which usually means not preparing a stack of calculations to hand to your ex the moment he or sits down. No one likes to be bombarded by a bunch of documents as if there was a done deal. Make a list of the things you need to talk about together. Usually this includes:

  1. where the children will live for most of the time,
  2. how decisions about the children will be made,
  3. how much child supportMoney paid by one parent or guardian to another parent or guardian as a contribution to the cost of a child's living expenses. should be paid,
  4. whether someone is in need of spousal supportMoney paid by one spouse to another spouse either as a contribution toward the spouse's living expenses or to compensate the spouse for the economic consequences of decisions made by the spouses during their relationship., and how much should be paid, and
  5. how the family assets will be divided.

Other lists will be useful as the negotiations continue:

  1. which assets are the family propertyA term under the ''Family Law Act'' referring to property acquired by either or both spouses during their relationship and after separation, if bought with family property. Both spouses are presumed to be equally entitled to share in family property. See "excluded property." that needs to be divided,
  2. how much that propertySomething which can be owned. See "chattels" and "real property." is worth.
  3. what are the family debts and how much is owing,
  4. when will each parentIn family law, the natural or adoptive father or mother of a child; may also include stepparents, depending on the circumstances and the applicable legislation; may include the donors of eggs or sperm and surrogate mothers, depending on the circumstances and the terms of any assisted reproduction agreement. See "adoptive parent," "natural parent" and "stepparent." be with the children,
  5. how will holidays and other special days be shared, and
  6. what additional information each of you needs to collect.

Most importantly, keep a separate piece of paper to write down the things that you agree on as you agree on them. This will help to keep a record of the issues that have been decided, and give each of you a sense of commitment to those decisions.

As discussions go on, you might realize that you and your ex have different ideas about what the law says about an issue. This is the perfect time to take a break and arrange to meet a week later. You can tell your ex about this website and encourage him or her to read it to get the basic background information.

If you need more help, each of you could also meet with a lawyerA person licensed to practice law in a particular jurisdiction. See "barrister and solicitor." to talk about things. If you decide to do this, it is important that the lawyers understand that you and your ex are negotiating these issues, not fighting about them.

Using lawyers

If you find that you're getting stuck on one or more points, or if your ex is refusing to talk to you at all, it's probably time to hire a lawyer.

Hiring a lawyer doesn't mean that you're headed to court and eventually to trialThe testing of the claims at issue in a court proceeding at a formal hearing before a judge with the jurisdiction to hear the proceeding. The parties present their evidence and arguments to the judge, who then makes a determination of the parties' claims against one another that is final and binding the parties unless appealed. See "action," "appeal," "argument," "claim," "evidence" and "jurisdiction.". It means that you're serious about these issues, and you want to move things to the next level. Most lawyers will write a letter to your ex explaining that they've been hired by you to start or continue negotiations with an eye to reaching settlementA resolution of one or more matters at issue in a court proceeding or legal dispute with the agreement of the parties to the proceeding or dispute, usually recorded in a written agreement or in an order that all parties agree the court should make. A court proceeding can be settled at any time before the trial. See "action," "consent order," "family law agreements" and "offer.". (Of course, the lawyer will be there if nothing works and you do have to start a court proceedingA legal proceeding in which one party sues another for a specific remedy or relief, also called an "action," a "lawsuit" or a "case." A court proceeding for divorce, for example, is a proceeding in which the claimant sues the respondent for the relief of a divorce order..)

Lawyers often negotiate directly with the lawyer for the other person, through letters and telephone calls. Sometimes lawyers will have a meeting where everyone's there: you, your lawyer, your ex and your ex's lawyer. These are called four-way meetings, and they can be very helpful to move discussions along.

Using mediators

As an alternative to each of you hiring your own lawyer, you should also seriously consider hiring a professional mediator. The mediator's job is to help two people reach an agreement of their own; the mediator may direct the discussion, but the mediator isn't your ally or your ex's ally. The mediator is completely neutral.

Mediation can be very effective, and can often bring people to a settlement, even where their positions seem to be very far apart.

Before hiring a mediator, make sure you've looked into his or her background to make sure that the mediator has had special training as a mediator. Lawyers who have training and are accredited to mediate by the Law Society are called family law mediators, and will usually advertise themselves as such.

For more information

You can find out more about using alternatives to court in the chapter Resolving Family Law Problems out of Court.


Creativecommonssmall.png JP Boyd on Family Law © John-Paul Boyd and Courthouse Libraries BC is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 2.5 Canada Licence.
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