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When compromise gains you leverage

I am a firm believer in mediation and collaboration to resolve disputes.  This is particularly true in divorce cases.  However, a willingness to work together, doesn’t mean you compromise on every point.  This is what causes friction in family law.  There are some points that people believe are non-negotiable.  There is a middle ground between compromise and non-negotiable-Leverage.  Here is a recent example to illustrate this point.

I have a client who altered her visitation schedule a few months ago.  It was done by agreement.  It was done because she got a new job.  A good job.  The only change was swapping Tuesday night for Thursday night.  Everyone was happy with the change.

Now, heading into the summer, the ex wants to change it back.  His hardship he claims, is that he would go for too long without seeing his child when he it wasn’t his weekend.  But to put this into context, my client has an open-door policy.  He can (and is encouraged to) see their child whenever he wants.  He lives two streets over from my client. There is no obstacle to spending time with the child.

The reality is that he plays golf on Thursday nights in the summer with his girlfriend.  He wants to do that sans kids.

Not only does he want the change, but he’s also making a big deal about it.  Why?  Because he can.  It’s the last bit of control he can exercise over his ex-wife.   His reasons are NOT sufficient to modify a child custody/visitation schedule.  When he pushes it to court, it will cost my client money to respond.  Money she really doesn’t have.  He knows this.  He also knows if he pushes, she will cave.

My advice was to politely push back.  Hold your ground.  From a legal standpoint a judge will not grant this switch because it would negatively impact my client’s work schedule while benefiting the ex-husband’s social calendar.  This issue is not ripe for court.

The question is whether is made any sense for my client to accommodate.  Would a little kind gesture give her leverage for any future issue?

The reality of switching the days back is that on Thursdays, the child, who is almost 13, would be home alone from about 5:00 to 6:30.  Its not the end of the world.  The child is mature and could handle being alone for an hour or so.  Outside of that issue, my client doesn’t really care if her night is Tuesday or Thursday.  She would gladly take both.

There is a fine line separating the decision to fight and the decision to accommodate.  This is one of those cases where you should lean into agreement.  Should the ex-husband seek court intervention, we probably will recommend not to fight.  Save the money.  Leverage this ‘agreement’ for something in the future.  If the change would have a strong negative impact on my client, we would fight back.  But here, it is simply not worth it. With another 5 or 6 years of custody and support issues, it may be beneficial to have a something in your back pocket.

Mere acquiescence is not prudent.  In relationships with a history of unequal bargaining power it is important to know your rights and negotiate from a position of strength.  We win this one in court.  All day. Every day. But my client spends a bunch of money and is miserable for three months in the process.  Simply, it is more important to be happy than to be right.  Sometimes your gain in compromise is much greater than your gain in a fight.

Shawn M. Masterson is an attorney practicing divorce and divorce mediation in Rhode Island and Massachusetts, and virtually throughout New England.

401-455-0002   [email protected]

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