If you and your spouse have accumulated significant assets before or during your marriage, the prospect of divorce can be especially daunting. You may be worried about your spouse gaining control of assets, such as a business, that you have worked hard to build. You may be angry if you feel your spouse has dissipated assets or contributed to the breakdown of the marriage. For many reasons, you may have an impulse to get the most aggressive lawyer you can find and take your spouse for everything they are worth.
This is a bad idea, for reasons we will discuss shortly. That’s not to say that you shouldn’t get the best lawyer you can afford, but there is a difference between a good lawyer and an aggressive one. To put it simply, an aggressive lawyer is determined to fight and hopefully, to “win.” But a good lawyer is focused on your goals and needs, and doing whatever is necessary to achieve them. The aggressive attorney may deliver a “win” in court, but at the cost of your peace of mind, your relationships, and a great deal of your money, which flowed into your attorney’s pocket.
When you come to the point of divorce, it is natural to be focused on the past, on what has happened to bring you to this point. But especially when you have wealth or complex assets to consider, your focus should be on the future and what you want it to look like. And, of course, you should choose an attorney who is best equipped to help make that vision a reality.
Interests vs. Positions
Much of the time, in divorce and other situations, we tend to dig in our heels on our positions to the detriment of our interests. What’s the difference between positions and interests? An example will help to illustrate. Let’s say that John and Mary have been married for 25 years, during which time they have established a thriving business. Both insist they should be awarded the business in the divorce, and continuing to work together in the business is not an option. “I must get the business” is a position. What’s more, for one party in this case to get what they insist they want, the other party must lose. That makes settlement unlikely, and sets the parties up for a long, expensive, contentious trial.
A good attorney will get at the “why” behind the position. For instance, it’s possible that the business was built on an idea of John’s. To him, it represents his life’s work, and without the business to manage, he would feel lost. For Mary, on the other hand, the business represents financial security. She has worked only in the family business for years, is unsure if she could get another job, and is worried that she won’t be able to provide for herself after the divorce.
John’s interest in this case is in continuing to direct the business according to his vision. Mary’s interest is in making sure she has adequate income going forward. Knowing this, their attorneys can make the effort to help both spouses get a “win.” Maybe John gets to keep and control the business, and Mary gets a percentage of annual profits, in addition to other marital assets. Or maybe John gets the business, and Mary gets their stock portfolio, so that she, too, has income producing assets.
An overly aggressive attorney might storm ahead, refusing to back down from their client’s stated position. A good attorney will help their client identify interests, and negotiate a settlement that best meets those interests.
Choosing an Attorney Who Can Represent Your Interests
Even better than getting your own interests met is when you and your spouse are able to identify and work toward mutual interests. For instance, if you have children together, it’s likely that a joint interest is helping to secure their financial future. With that shared goal in mind, you, your spouse, and your attorneys can work together to craft creative resolutions. Assuming a cooperative, rather than adversarial posture, accomplishes a number of goals. First, it reduces your own anxiety and stress in the divorce process. Second, it means you are more likely to get an outcome that works for you, because you had a hand in crafting it. And third, reaching an early resolution through interests-based settlement negotiation can save tens of thousands in legal fees.
Sometimes, there is no reasonable option except to go to trial, so it is important to have an attorney who can fight for you in court if necessary, But if you are interested in preserving your assets, an attorney who is also a skilled negotiator is probably your best bet.