How to Negotiate From a Position of Power in Divorce

In what some consider the greatest love story of all time (Romeo and Juliet), William Shakespeare wrote the immortal line, “Parting is such sweet sorrow.” However, nine times out of 10, it’s anything but when a divorce is concerned.

The breakdown of a marriage can be mentally, physically and emotionally draining for everyone involved. And that’s usually before you’ve even set foot inside a lawyer’s office. We’ve all heard nightmare stories of divorce battles that take years and cost everyone a fortune. But the issue of finance is just the tip of the iceberg. 

We saw the terrible emotional toll divorce can take in the 1979 film Kramer vs. Kramer. Ted Kramer (Dustin Hoffman) lands the job of his dreams, and on the same day, his wife Joanna (Meryl Streep) informs him she’s leaving him and their young son, Billy. Then, after months of learning to bond with his child, Ted loses his job. But his break from work also means he can get closer to Billy. Then, his wife Joanna emerges on the scene, and a bitter custody battle ensues. 

Streep, who won the Academy Award for Best Supporting Actress for her role as Joanna, famously branded the character “an ogre, a princess, an ass” when she first read the script. She asked for rewrites, saying that (spoiler alert!) when Joanna gives up Billy in the final scene, it should be for the boy’s sake, not hers. Streep insisted Joanna wasn’t a villain. Rather, she was a reflection of a real struggle that women were going through across the nation, and the audience should feel some sympathy toward her.

Joanna gives up custody of her son despite winning the court battle. For her, that was her position of power. But her entire shattered family also went through the wringer to get to that point.

Fast forward to present day. In the 2019 movie Marriage Story, Charlie Barber (Adam Driver) and his estranged wife, Nicole (Scarlett Johansson) are embroiled in a bitter coast-to-coast divorce battle. (Do you see a theme here?)

The interesting aspect here is that Nicole and Charlie initially want to try to sort things out without lawyers. But as things start to go awry, Nicole decides to hire one and tensions begin to escalate between the ex-couple. 

Charlie, who is blindsided, starts talking to a brash lawyer of his own, who urges him to fight dirty (we will revisit their story later in this post). However, the bottom line is the same. When emotion and family are involved, it’s tough to stay civil while also being powerful. And getting a third party involved can often make the situation worse.

So, how do you avoid these terrible pitfalls and stresses when trying to negotiate in a divorce? And how can you do that from a position of power without causing more anxiety for yourself and for everyone else?

Using the A.R.E.F.I.T Model in Divorce Negotiation

There are a number of components you have to deal with when you are involved in a divorce negotiation. Two that cause a lot of anxiety are what you can afford and what is personally acceptable. Your objective where these two components are concerned is to find a reasonable and legally acceptable balance between them.

The task of negotiating child and spousal support, dividing your property and possessions, and establishing child custody arrangements can be harrowing. And often, you and your ex may not be on speaking terms. Then, when cutthroat lawyers get involved and make rigid (and sometimes outrageous) demands, you dig in, a judge takes over, and animosity can reach a fever pitch.

Try to enter into any negotiation from a position of good faith. This is where my A.R.E F.I.T model can come into play. If you are not familiar with A.R.E F.I.T, it’s a mnemonic for: 

  • Assertiveness
  • Rapport building
  • Empathy
  • Flexibility
  • Intuition
  • Trustworthiness 

Apply this model and you can negotiate with intention and focus. 

So, how can this play out when negotiating a divorce?

To get a good result when negotiating the end of your marriage — particularly the division of assets and liabilities, custody and visitation, and alimony — ideally you need to be in the same emotional place. All these areas can quickly devolve into heated, unpleasant, emotionally loaded debates if you’re not on the same page. If you and your spouse both accept your marriage is over, you can save money in legal fees, and you can move forward and get things done. 

Spouses who negotiate the end of their marriage without anger move on in better emotional and economic shape after the divorce is finalized — and that’s better for everyone. You can use your rapport-building skills to get to a place of equanimity with your spouse. Empathy can play a massive role in achieving what you desire. Even if that might mean putting aside some terrible behavior or hurt, you need to focus on the long game. This is where your intuition and flexibility come into play. 

If you are in the fortunate position of entering into an uncontested divorce, you can also try leaving the legal teams out of it. 

If you’re on speaking terms with your ex, you can show empathy and also trustworthiness. Yes, you may feel vulnerable. And you will feel you need to struggle to maintain control. But you would be amazed at how much control you can find by showing empathy and understanding their point of view. It allows you to focus on what is most likely to help you reach an agreement and come up with creative solutions. 

The key here is being flexible. If you remain open to creative solutions that go beyond your initial expectations, this is better for everyone. Trusting your intuition, and building trust between you and your estranged partner, will enable you to move toward the agreement you desire while reducing the animosity between you.

For instance, if you understand that your spouse’s biggest fear is having custody cut off from your kids, you can work with them to develop creative ways to ensure that does not happen. This will help put you in the position of power to negotiate something really important to you.

One thing you can each do is make a list of your interests. Then swap that list with each other to see how they marry up (excuse the pun). You can then ask each other questions about what you both want. 

The A.R.E. F.I.T model is at the core of my teachings and will enable you to negotiate with intention. I go into more depth on what these are and how they can work for you in my Art of Feminine Negotiation program. 

What to Watch Out For in Divorce Negotiations

Much like the seven deadly sins — pride, envy, gluttony, greed, lust, sloth and wrath — there are seven sins when it comes to divorce, which run parallel.

  1. Greed: This makes what should be a reasonable financial negotiation seem impossible. Your spouse could be masking their feelings with entitlement. 
  2. Lust for power: If your spouse wants to take over, it can sound the death knell on your negotiations. 
  3. Pride: Can cause an impasse and push your spouse into an untenable position in negotiations.
  4. Gluttony: Overindulgence to the point of extravagance or waste can harm you with irresponsible spending and social behaviors.
  5. Fear: Undermines good negotiation. You are dealing with fear of rejection; loss of position, property and community standing; or fears of loneliness and starting anew.
  6. Envy: What was once a happy, peaceful partnership often turns into a minefield of angry retorts and petty point-scoring exercises. The ones who suffer most in this can be the children. But your sanity can also be tested to the limit if your ex-spouse is envious of your relationship with your children. They can also be envious of any new relationship you may have with a new partner.
  7. Sloth: In reacting to moving the divorce forward, a laissez-faire approach to your court case can cause pain financially and emotionally if your divorce is less than amicable. Too often divorce cases seem to drag on forever, which translates into prolonged emotional turmoil, as well as a fortune in attorney’s fees.

Whatever the obstacles, the basic rule in negotiating is to understand what options exist for both you and your ex. Insist upon realistic objectives. And if you know that you have control, focus on the problems, not the person. This will enable you to stay emotionally detached as much as you can, given the circumstances.

Let’s go back to the movie Marriage Story. (Spoiler alert!) When the case moves to divorce court, their respective lawyers go for the jugular of the opposing side. Nicole is painted as an alcoholic who attempted to hack Charlie’s emails. Charlie is portrayed as an emotionally distant cheater. However, the couple are amicable outside of court. And they spend time with their son, Henry, who is getting more and more upset by what has been happening. Can you recognize some of the aspects mentioned above in their divorce battle?

How to Negotiate in Power in Your Divorce

There’s a common pattern to all divorce proceedings (i.e., a cycle of initial contact, then the planning): research, goals, strategies and tactics. If you’re familiar with my programs, you will know how essential planning is to you being a strong negotiator in any area of your life. 

I have a free e-book with some great tips on this subject, which explains five secret weapons you can use in any negotiation. It outlines how you can focus on the five W’s of why, when, where, what and who, to ensure you’re more effective in your negotiations.

After one or more negotiating sessions, you want this to lead to a signed agreement, complete with provisions, so you know your legal agreement will be carried out. Here are some tips you can implement to make the process easier.

Think Logically

Did you know that when women use accepted business logic in preparing for a divorce, they may be perceived as ruthless, calculating and manipulative? Yet when men use accepted business logic in preparing for a divorce, they are seen as practical, logical and direct.

This comes back to the differences in how women and men have long been brought up in society. Boys are encouraged to beat their chest and ask for what they want. By bragging and demanding, they get whatever they desire — and it’s acceptable. 

However, this form of social conditioning means it’s not the done thing for a woman to ask for what she wants or to show confidence in herself. Instead, women are encouraged to be self-effacing. So, when women step into our power, we can be seen as manipulative!

When it comes to divorce, you both need to be rational. Be concrete in your ideas and remain open to reason (there’s that A.R.E. F.I.T model coming into play again). 

You need to be prepared to be assertive about what is important to you. Ask questions until you’re satisfied with your spouse’s basis for reasoning. Be prepared to answer questions that clarify the integrity of your position and keep your cool while doing so. Be as tough as you want politely and openly without anger or aggression. Be empathetic to your spouse and appear understanding of their position.

Entering Negotiations

Here are some tips from divorcing couples who have survived a split and come out the other side: 

  • Request that negotiations be held where the atmosphere is quiet.
  • Be prepared to take notes and check off each item as it is completed.
  • Have copies of whatever documents you’ve been asked to bring.
  • Body language speaks loudly. Sit tall and use direct eye contact as much as you can, but don’t be defensive (for example, crossing your arms). 
  • Speak in your normal tone of voice and don’t shout. Listen quietly and patiently to what is being said.
  • Make sure that you have an equal opportunity to voice your opinions or disagreement.
  • Try to stay in the first person when you speak. Don’t be afraid of the word “I.” Present all of your feelings, facts and observations in the “I” mode.
  • Try not to be defensive about your ideas and be open to advice — even constructive criticism.
  • Don’t mix business and personal matters in the same conversation.
  • Use time to negotiate. You have every right not to be pushed into delivering an immediate answer.
  • If you feel tense and overwhelmed, take a few deep breaths from the diaphragm and let them out slowly,

The Bargaining Table

Go to the bargaining table, know what you want, and use this knowledge as a tool to get it. Bargaining is a tool commonly used to resolve previously undecided issues. As you work through each issue, consider that topic closed. Don’t rehash what was supposedly already settled. Be adaptable and consider new circumstances or information. 

When it comes to bargaining in your favor, you need to consider the following:

  • What is the least you would be willing to give or give up?
  • What is the most you would be willing to give or give up?
  • What is the bottom line you would be willing to agree upon?

Try not to think in terms of assets, and don’t forget about liabilities. 

Debts and other nasties still need to be negotiated. 

And if you reach a stalemate, your lawyers should be able to provide information about how a similar situation has been previously handled.

So, once again back to Marriage Story. How did Charlie and Nicole end up? A year later, Nicole has a new boyfriend and Charlie has moved full time to LA to be nearer his son. The end scene (I’m not going to give too much away if you want to watch the movie yourself) shows the couple, with Charlie carrying their sleeping child. Nicole thoughtfully stops to tie Charlie’s shoelace. He thanks her and they say goodbye.

The moral of this story is that despite the difficulties you can face when coping with divorce, most couples can overcome their differences and anxieties. And you can get what you want by stepping into your power.

If you enjoyed this blog post, then check out 5 tactics you can use to tap into your feminine.


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bargaining, communication, Feminine Power, intention

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