13 September 2024, by Tay Kit Hoo, Advocate and Solicitor of the High Court of Malaya
There are a few ways to negotiate for spousal maintenance. Commonly, negotiation can happen via a physical or virtual meeting or via legal correspondence. Sometimes, negotiation can also happen in the presence of a neutral third party such as a financial planner or a family therapist. It is important to note that different strategies may be employed for negotiation and the preparation work behind it may not be universal. Be that as it may, a lawyer may need to consider the following items in a face-to-face negotiation for spousal maintenance.
- Knowing the Law — It goes without saying that you must be well versed in the area of law governing spousal maintenance before being able to negotiate effectively. Do go through, among others, the Law Reform (Divorce and Matrimonial) Act 1976, the Married Women and Children (Maintenance) Act 1950 and the Married Women and Children (Enforcement of Maintenance) Act 1968. It will also be helpful to know the general trend of cases deciding on spousal maintenance when advising clients of their rights.
- Getting the Client’s Facts Right — You will need to ascertain your client’s means and needs for spousal maintenance. Clients can be asked to prepare a table of their monthly expenses. They can also be requested to provide proof to substantiate their claims. Be prepared to challenge your client’s claims — if you are not convinced of the client’s expenses, neither will the spouse or the court.
- Set Clear Objectives — Your client will need to do the homework to ascertain what they wish to achieve before negotiation. As it affects their livelihood, allow them sufficient time to think and go through thoroughly on what they want. It will be difficult to negotiate when the goalpost shifts midway through the process.
- Generating Options — It is worthwhile to brainstorm with your client on the widest range of solutions to settle. As negotiation is not constrained to what the law will grant for your client, you can be creative in offering solutions for your client to consider. This will allow much room during negotiation discussions. For example, in lieu of monthly maintenance, your client may consider lump sum payment, receiving ownership of income-generating assets or even obtaining a salaried position in a company. In addition to generating options, you should also prompt your client to think about the feasibility of each option generated — consider managing your client’s expectations by going through the best and worst alternative to a negotiated settlement to reality test.
- Check Authority to Settle — Before entering a negotiation, you should check your client’s range of acceptable settlement. It is best to have the same confirmed in writing to avoid any future complications.
- Prepare Pitch to Spouse — Be prepared to convince the spouse or his/her lawyers that your client is reasonable in his/her proposal. It is best to come up with a plan on how you think the spouse will come to terms with your client’s proposal. Having a consistent well-thought-out pitch will make your client’s proposal more palatable to the spouse. For example, if your client wishes to have a lump sum payment in lieu of monthly maintenance, one possible pitch is that your client wishes to kickstart a business with the money so that she can generate her own income to survive.
- Listen and Keep an Open Mind — Also, be prepared to listen to the spouse on their views and counterproposal. In listening, you will be showing empathy to the spouse which will build your rapport. In addition to that, you should also be listening to explore any way parties can come closer to a negotiated settlement.
- Strategise and Coordinate — If you are attending the negotiation with your client, you need to make sure that your client is aware of your strategy approaching the negotiation. Seasoned practitioners may be able to pick up on the lack of coordination and that will expose your client’s weaknesses.
- Tools for Impasse: Engage A Neutral Third Party — In the event of an impasse, parties may jointly engage a neutral third party expert such as a financial planner to assist with the negotiation. The person may be able to analyse complex data, shed light on the parties’ problems in a different manner or provide solutions in an unbiased way.
- Tools for Impasse: Disclosure — It is common for parties not to trust each other when it comes to negotiating for spousal maintenance. One of the few common complaints will be that your client suspects the spouse is hiding their true capacity to earn or that their expenses are inflated. One way to resolve this will be to put a pause on negotiation and ask for disclosure to ascertain the means and needs of parties. While it may not be a solution for all cases, it may help parties move further in coming to a settlement.
- Tools for Impasse: Put Options to Test — As we do not live in an ideal world, some options considered may not be entirely practicable. Instead of avoiding those options altogether and reaching an impasse, your client may opt to try out one or two options before committing, if this can be agreed by the spouse. It may also be beneficial for parties to re-negotiate in the future after some passing of time, or maybe after old wounds have healed. However, please ensure that the intention for the solution to be temporary is made clear to both parties.
- Ensuring Clarity in Settlement — It is your responsibility as a lawyer to ensure that successful settlements are recorded to reflect parties’ intention. It will be a waste if all the effort put into negotiating ends up with terms that are not understood or honoured.
As a concluding remark, it is important to recognise that not all cases can be successfully negotiated. Sometimes parties are just not ready to settle in order to have their day in court. However, it is pertinent that you try to keep the doors open for settlement by proposing alternate dispute resolution mechanisms such as mediation or collaborative practice.