ARE THERE LEGITIMATE REASONS FOR AN EMOTIONAL TRADE-OFF IN A DIVORCE?
By: Allison Quattrocchi (Attorney/Divorce Mediator)
If the statistics are correct, fifty percent of adults who have been married have been divorced, are getting divorced, or will be divorced. The odds are, therefore, that at this very moment many of you know someone who is in the process or soon will be in the process of divorcing, or you yourself may be facing or contemplating that possibility. Whichever the case may be, you can help yourself, your family member, or your friend, by embracing or encouraging them to embrace the goal of putting together the best post-divorce family possible. The following article is one of many I hope to post on this site that will address different divorce-related issues and provide information, strategies, and guidance for achieving a "good" divorce. This article addresses the potential for an emotional trade-off that may arise in the negotiations and when it may be appropriate.
In my many years as a divorce mediator, I have often squirmed uncomfortably because of the agreement that was developing between the parties. Respect for the parties and for their right to make their own agreements and to take charge of their own lives is a basic tenet woven into the heart and purpose of mediation. Dr. John Haynes, one of the preeminent pioneers in mediation, used to say, "Everyone has the right to buy his or her way out of a marriage." That idea has stuck with me and I believe in it. Buying one's way out of a marriage is only one of the many rationales people may have for making a lopsided agreement, whether that agreement applies to the division of property and debt or the amount of the child or spousal support.
If someone is contemplating making a lopsided agreement, however, it is wise to be cautious. The mediator's concern is always whether both parties have enough information and enough emotional balance to be able to take responsibility for their agreement. The somewhat disputable question is to what extent the mediator should go to assure the competency (not the fairness) of the agreement. And to further complicate the issue, the answer may depend on the circumstances of each case.
There are several tools the mediator can use when agreements start moving out of normal range. I let clients know that, although I make no judgments about any agreement that arises, I feel part of my role is to protect the competency of the agreement to the extent I am able. This means that I try to ensure the couple is making informed decisions by requesting documentation behind their assets and debts and by watching out for emotionally based decisions—decisions that they may be making out of anger, guilt, control issues, or because of intimidation or threats. Protecting the competency, to the extent I am able, of the emotionally based decision is a more difficult challenge than getting the documentation.
If I think the agreement is moving out of the legal ballpark (which is very large), I will want to hear a rationale that makes sense to me. This is not for the purpose of upsetting the agreement, but a means of making as sure as I can that the party who is giving up something he or she may be entitled to is taking ownership of the agreement, that it won't crash in an attorney's office, or that the party will not be angry about the agreement six months down the road. At a minimum, a legal consultation regarding the agreement will be necessary.
An emotional trade-off, that is, when one person, for some emotional reason, is giving up what might be available to him or her under the law, can arise as a dynamic in any negotiation, whether the party is represented by an attorney or is in mediation. Not a lot of social or legal support is available to a party for deciding to make an emotional trade-off, but for that person, it may be a valid exchange. Six common rationales, alone or in combination, often motivate an emotional trade-off. They arise out of power and control issues, a party's own emotional and physical health, and the respective values or priorities of the individual making the trade-off. Below is a discussion of what I have observed are the most common rationales people use for making emotional trade-offs.
1. "I cannot emotionally take it any more."
Whether the legal or divorce process has exhausted one of the spouses or one spouse has exhausted the other or both, someone has gotten to the point that any "win" is not worth staying stuck in the morass. A party is unable to move on with his or her life or focus on business. That party may also continue to watch his or her health decline due to the stress and energy drain of the divorce. To keep going is the ultimate "win-the-battle-and-lose-the-war" scenario. After weighing the pros and cons of an emotional trade-off, the outcome of which will depend on how that person defines his or her priorities, there may be a very solid emotional reason for saying "no more, " taking less or giving more, and getting closure.
2. "I feel guilty for wanting this divorce."
Although this is a different motivation for an emotional trade-off than the reason stated in number 3, the rationale for both is the same.
3. "I wanted this divorce over yesterday."
Feeling guilty for wanting the divorce (number 2) and wanting it over as soon as possible are reasons why someone might take less in the settlement than he or she might be legally entitled to. There is nothing wrong with someone offering a "great deal" to get the divorce over with as quickly as possible or to soothe a guilty conscience. That person must, however, weigh carefully the possibility of feeling angry about the decision later."Buyer's remorse" will not contribute to his or her ability to move forward with life after divorce.
4. "I am in a position to recover faster."
Leaving more on the table for the other spouse is the action of a person with a generous spirit and usually arises from a strong sense of the provider role and caring. Usually, there are also children. The spouse making the offer is often very secure in his or her future earning power and sees his or her needs as secondary to those of the other spouse and the children. The mediator, however, might be somewhat concerned about the presence of a rescue mentality or other emotional baggage that may be motivating the offer and, therefore, I think, needs to be especially diligent about questioning the motivation to make sure the agreement survives the challenge.
5. "I want there to be peace for the sake of the children."
This trade-off happens when one parent is faced with an arbitrary demand from the other parent and to challenge it means a fight. The parent who is making the trade-off is less concerned about any material gain than the effect on the children of a fight—legal or otherwise. That parent may also be concerned about the increased anger and resentment from the parent who is making the demand, if the demand is not satisfied. Each parent's priority in this case is conspicuously different. One parent appears to be willing to run the adversarial gamut. The other parent wants closure and is anxious to protect as much as possible the children and the parenting relationship after the divorce.
An Example of a Trade-Off for Closure
A husband who lived very frugally, seemingly proud of his self-denial, had issues with his wife's spending. Both spouses had equal incomes. The husband expected his wife to take responsibility for all the debt that, at the time the divorce was initiated, amounted to $20,000. The wife accepted the debt without comment. The husband saw no reason why this was not fair, even after the mediator forced the discussion of the issue and the husband acknowledged that he and the children had benefited from the expenses that had created the debt. The husband finally accepted a few thousand dollars of the debt, but that was as far as he was going to move. The wife admitted she was accepting the balance of the debt "to keep the peace" and "get the divorce over with, " even though she did not believe it was fair. She said she knew her husband well enough to know it was useless to keep arguing over this issue. The wife could easily have prevailed in court, but to her it was not worth the time, the money, or the potential damage to their parental relationship and the children.
6. "I need cash flow now so I can stay home for the children."
Sometimes parents do not agree on the necessity for one of them, usually the mother, to stay home to care for the children. The mother may then make a trade-off of the value of an asset for more or longer spousal support, which will enable her to postpone entering the work force.
An Example of a Trade-Off for Cash Flow
In a marriage of four years, the wife was a stay-at-home mom for the couple's son, who is now three years old. The father's family would provide day care if the mother went to work, but the mother felt strongly about waiting until the child was five years old before seeking employment. The father had a very moderate income. The mother had a significant relationship in her life, and it was no surprise to the father when the issue of possible remarriage arose. The mother asked the father to pay spousal support for the agreed-upon term regardless of whether she remarried and traded her interest in his 401(k) Plan for that agreement.
The cash flow was more important to her than 50 percent of the 401(k) Plan even though the Plan was greater in value (if she did not liquidate it). Alternatively, had she taken her share of the Plan and liquidated it, the value would have been less than the value of the spousal support because of the tax consequences. The father was quite happy to be able to retain his entire 401(k) Plan. The mediator made very sure the mother was taking complete responsibility for that decision, reality tested all kinds of scenarios with her, and insisted the agreement be reviewed by independent counsel. The mother stood by her agreement. She, of course, had the right to make this decision.
All of these reasons for emotional trade-offs are legitimate. Alternatively, all of them can also emerge from dynamics that do not lend themselves to competent decisions. It is a careful mediator, who gently and persistently, does the best he or she can to sort out the motivations and help the parties take responsibility for their decisions. Always, and I maintain always, the mediator should insist that the person who is making an emotional trade-off get independent legal counsel. The expectation, of course, is that the attorney will ask that individual to reexamine his or her motivation and point out any legal rights that may be being compromised. That person may have heard the same thing in mediation, but that does not carry the same weight on several levels as hearing it from the attorney. This exercise protects everyone, including the mediator. Neither the mediator's challenge to the client for a rationale nor the mediator's request that the client get legal advice needs come as a surprise to the client if the mediator has set those expectations out in the beginning of the mediation. Insisting that the client gets legal advice and processing the rationale behind the decision in mediation protects the integrity of the mediation process. In sum, emotional trade-offs are valid as long as the person making the trade-off understands the reason behind it, has had plenty of time to think through his or her decision, and assumes complete responsibility for it. Don't be afraid of it.
*Article is based on an excerpt from "Taking Control of Your Divorce" written by Allison Quattrocchi. It can be ordered at www.divorceinanutshell.com
About the Author
Allison Quattrocchi is an attorney and one of the pioneers in the field of divorce mediation. She founded the Family Mediation Center in Scottsdale, Arizona, in 1981. and has been a champion of mediation both at the state and national levels. For many years she provided advanced mediation training and also practiced family law. She is currently publishing a series of concise and easy-to-read book, each written by an expert, that address various divorce-related topics. Allison has authored four of these books and coauthored one. These books can be ordered at www.divorceinanutshell.com
