Overcoming Fear and Positional Thinking in Divorce

By Published On: February 26, 2018

“No matter what happens in this divorce, I must stay in the house.”

“I will never pay support to my spouse for more than a few years – I’ve worked hard and my ex doesn’t deserve anything more.”

“There’s no way I will accept a lower amount of support.”

These statements reflect typical positional thinking in divorce — taking a firm stance and being unwilling to alter it — which is quite common at the outset of a divorce process.  For many clients, it stems from the fear of financial insecurity after divorce or anger at the other spouse.  And it often leads a person facing divorce to seek out an attorney who will advocate for that position no matter the cost or likelihood of achieving the outcome.

But being positional may not always lead to the best financial settlement for yourself or your family even though it may make you feel strong and confident initially.  In contrast, starting with an open mind and being flexible and creative in your thinking throughout the process is more likely to result in a lasting financial agreement achieved without an acrimonious court battle.

So, if you are beginning a divorce process (or are already in one), consider incorporating the following points into your thinking and approach:

(1) Select an attorney who best suits your personality and needs.

Choosing an attorney who you feel “gets” you and your unique situation is key to reaching your goals.  Whether you are a working spouse or a stay-at-home spouse/parent, it is critical to find a divorce attorney who can educate you about complex financial issues, identify your interests, give you a realistic assessment of your desired outcome, and help you decide whether an out-of-court process (such as Collaborative divorce, mediation, or negotiation) or litigation is the best way to achieve the most favorable financial result possible.

(2)  Get educated about your financial situation and be involved in your divorce process.

Understanding your assets and their attributes is essential to formulating advantageous options for settlement.  For example: Is an asset transferrable?  Are there tax consequences to receiving ownership of an asset (such as capital gains on the sale of your home)? How would receiving ownership of an asset contribute to achieving your financial goals or put you at risk financially?

Likewise, it is important to gain an understanding of your budget and cash flow.  Questions to ask and answer include: What are the components of your monthly budget and the family cash flow? What items will change after the divorce or over time?  Can you afford to continue to maintain the same lifestyle you had during the marriage?

If you haven’t been involved with your finances, utilizing a financial expert or accountant can be helpful to ensure you understand the various parts of your marital estate and are not fearful about the outcome.

(3) Be aware of the strengths and weaknesses of both your own and your spouse’s positions.

It is essential to evaluate not only the strengths and weaknesses of your own situation and positions, but also those of your spouse.  Doing so will serve as an essential reality check and may also open up alternatives you had not otherwise considered.

(4) Consider numerous options and be creative.

There is no one right way to structure the financial resolution in your case. Instead, there are likely many ways of putting together the pieces of your financial puzzle – each with its advantages and risks for you and your spouse.

Be expansive in your thinking by creating as many options with your attorney (or financial expert) as possible and examining how they can fit together.  Also, don’t get stuck merely on what the law requires or you think it requires.  Be creative and consider “outside the box” options that balance the specific needs and interests of both you and your spouse in an unemotional and creative way.

While it may not be your first instinct to do so, overcoming positional thinking in divorce can make it possible to achieve a durable financial agreement that both spouses can live with while avoiding an acrimonious and expensive divorce in court.


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