In Brief: Out-of-Court Divorce Negotiations


A man and a woman in tense negotiations

Negotiating the terms of your divorce without the court’s involvement can save you years in delays, tens of thousands of dollars in attorney fees, and a lot of frustration. However, arguing with your spouse over the phone without any lawyers or mediators involved is unlikely to be effective. In fact, it’s often counterproductive and escalates disputes to the courtroom unnecessarily.

So what’s the right way to do it? Invite your spouse to a structured negotiation process, such as mediation, early on. The goal isn’t to settle disputes instantly over the phone, but to merely agree on a process for negotiation.

Negotiation Formats

There are several approaches to negotiation. Generally, they involve sharing settlement offers and counteroffers. However, the more heated and complex the disputes are, the more stubborn the spouses, the more help from lawyers and mediators is necessary. The typical approaches to structured negotiation include:

  • Informal negotiations is when you exchange offers and counteroffers informally. There are no deadlines and no mediators pressing the spouses to make good settlement offers though. Informal negotiations can be ideal early-on before disputes escalate.
  • Cooperative is where both spouses hire lawyers, agree to share evidence, and the lawyers take the lead on collaborating on a fair deal.
  • Mediation is the most common, most effective form of negotiation for most cases. It involves a mediator sharing offers and counteroffers between the spouses, while encouraging each spouse to make compromises. This process has an extremely high success rate at resolving divorce disputes.
  • Arbitration is sometimes used in the most heated disputes, where both spouses acknowledge they will never reach an agreement voluntarily, but agree to avoid the expense/delay of court.

If you’re not sure which approach is right for you, mediation is the best method in the majority of situations.

The Negotiation

The negotiation process may not be successful if it’s essentially the same as the arguments you had in text messages or phone calls. Each spouse needs to come prepared with evidence, records, affidavits, and an understanding of the law. The idea is for each spouse to predict what a court would do, then reach an agreement that’s similar. Ideally, the spouses get a similar outcome as going to trial, without the burden of actually doing so.

More Information

This post offers a brief summary of equitable distribution. You can download an in-depth guide here. Attorney David King can be reached at You can schedule a consultation here.