Have you ever thought of divorce as a way to work together toward a shared goal? Though it may sound counterintuitive, reframing it in this manner can help resolve not only interpersonal tensions but also complex estate planning matters like property division, trust arrangements, and custody disagreements.
Traditionally, divorce evokes images of bitterness, resentment, and tense standoffs across courtroom aisles. Even the term “dissolution of marriage” suggests a final, irreparable break, as opposites relentlessly pull at threads until they are left battered and bare. Yet in New York, a growing number of couples are approaching divorce differently: as a process of togetherness. This shift has been influenced by the concept of “principled negotiation,” outlined in Getting to Yes by the directors of the Harvard Negotiation Project, which encourages resolving conflicts through mutual understanding and respect, rather than digging into rigid positions.
Applying the principles outlined in this book can open up new avenues for resolution and may lead to better outcomes—especially in high-tension areas like New York, where estate-planning complexities abound. Keep on reading to see how you may adopt these practices into your legal separation, and why it is key.
Estate Planning: A Crucial Piece Often Overlooked
Given the staggering emotional weight of divorce, it’s easy to overlook other areas of potential conflict. However, it’s crucial to recognize that estate planning carries an equal stake in the process. Estate planning not only impacts your immediate family and relationships but also plays a significant role in shaping the financial and legal futures of both parties and your children: from wills and trusts to powers of attorney, life insurance policies, and medical directives, everything must be carefully reviewed and updated. Consequently, it is important to be mindful of all facets of divorce and what they entail. Paying close attention to these factors makes the following principles even more pertinent.
Turning Conflict Into Collaboration: The Power of Principled Negotiation
To start, it's useful to outline the reasoning behind principled negotiation and how it differs from traditional forms of argument. Why is it ineffective to approach divorce as a standoff?
The authors of Getting to Yes argue that most disputes revolve around individuals exchanging and defending rigid positions. By assuming such stances, your ego eventually becomes inextricably linked to your opinion, making it much more difficult to stay respectful, rational, and cooperative. With these hurdles comes another layer of inefficiency—as individuals strive to maintain their egos, they delay progress by holding out for their demands. Both sides try to win through pressure, which damages relationships and existing patterns of respect. And such difficulties are only exacerbated with the addition of more parties, as mutual concessions become more challenging.
Case Study: When Divorce Becomes a Tug-of-War
It’s easy to visualize this in real life. Take this example. Jim and Pam have been married for a few years, and decided to get a divorce after belatedly realizing their incompatibility. They treat a divorce as a game that can only be bested by beating the other: refusing to back down from their suggested terms and trying to pressure the other through emotional and tactical arguments. They are entrenched in their own opinions, clouded by negative judgment, and are unwilling to communicate their needs. The divorce drags on for years, as each views relenting as a blow to not only their pride, but their sense of self. Their two young children find themselves caught in both the emotional and legal thralls of the separation. As more parties enter the picture—legal professionals, other family members, and more—the situation becomes more muddy. Ultimately, the battle reaches a bitter conclusion: the resulting estate plan fails to meet either individual’s needs, and the relationship they once had with each other and their children is never the same.
Principle #1: People Are Not the Problem
The first principle the book presents is to separate the problem from the people involved. While the issue itself may be a legal dispute, the individuals involved also have genuine emotions, distinct interests, and unique perspectives. Therefore, the key is to address the core issues of the divorce without conflating them with personal feelings or identities. The problem should be something you work to untangle together, rather than trying to resolve your side by pulling tighter on the other’s.
Extracting the ‘people’ from the problem also allows the disintegration of the relationship to be separated from the argument itself. It’s important to put yourself in the other party’s shoes to better understand their thinking. Avoid dismissing the other side’s perspective and give equal weight to all arguments raised. Participation from everyone involved is crucial; make sure to communicate clearly and plainly what you want to do. Recognizing your own emotions is also essential. Sometimes, it can be helpful to let off steam before addressing the other person, as anger can make rational decision-making difficult. Finally, the most effective way to influence someone’s perspective is to communicate in a way that defies their expectations. Present your proposals in terms that resonate with their values.
Case Study: How Emotion Nearly Destroyed a Shared Trust
Consider these two examples. Prior to applying this principle, Jack and Jill had been experiencing significant conflict regarding the shared estate plan they created during their marriage. This plan included a revocable living trust to hold their assets. Jill expresses a desire to dissolve the trust immediately, wanting to distribute the assets directly and citing a loss of trust in Jack’s judgment. Jack, who wants to maintain the trust for the benefit of their children, retaliates by accusing her of being overly emotional and portraying him as a villain to justify her sense of righteousness. What begins as a disagreement over estate documents quickly devolves into a mess of personal resentment. Both end up conflating their identities with the positions they hold.
After reading this article, the couple realizes that they’ve lost sight of the actual issue. Jill acknowledges that her desire to dissolve the trust mostly stems from years of resentment and a deep desire to reclaim her independence. Jack, in turn, recognizes that his insistence on keeping the trust is partly driven by his fear of change and that he was projecting his insecurities onto Jill. Once they identify these underlying emotions and communicate openly, they are able to separate their grievances from the practical matter of estate planning. They end up keeping the children’s part of the trust intact while creating individual trusts for themselves.
Principle #2: Focus on Interests, Not Positions
The next important part of Harvard’s method is distinguishing between positions and interests. Put simply, positions are what people say they want, while interests are the underlying reasons behind those wants. Consequently, when negotiations focus solely on positions, they often obscure the real motivations through a back-and-forth of offers, demands, or threats; on the other hand, exploring interests directly helps bypass the murky water and leads to more constructive solutions. In many cases, individuals may share the same interests even if they hold opposing positions—whether that be stability for children, financial security, or legacy preservation.
Being as specific as possible about your interests can make the process much smoother. It’s also important to be firm in what matters to you, while staying flexible about how those needs are met. Since you’re likely to have multiple interests at play, keeping track of them in the form of a list or a flow chart can help you stay focused and on track. When identifying your priorities, it's equally important to remain open to your partner’s interests as well. Understanding the underlying “why” behind certain decisions can help you approach compromise with greater clarity and empathy.
Case Study: From Stalemate to Shared Vision Over Property
Picture this: Anne and Gilbert are getting a divorce and struggling to divide their assets. Anne insists on keeping the house the family owns upstate, while Gilbert wants to explicitly leave it to their son in his will. Both are firmly rooted in their positions and refuse to give in to the other, leading to a stalemate that stretches out the divorce for years and years. The argument becomes increasingly messy: Gilbert feels misunderstood by Anne, while Anne believes Gilbert is being unreasonably dismissive of her feelings.
This entire conflict could have been avoided if Anne and Gilbert had taken the time to define and communicate their interests instead of clinging to their positions. It turns out that Anne wants to keep the house because it has been passed down in her family for generations and holds deep sentimental value; furthermore, she isn’t as close to their son as Gilbert is, and fears that relinquishing it entirely would cut her off from accessing it forever. Gilbert, on the other hand, wants to give the house to their son in order to prevent any future legal litigation and ensure a smooth transfer of inheritance in the future. He thinks that giving the house to Anne outright could interfere with his son’s future claim.
Anne and Gilbert decide to sit down and have an open conversation about their interests, uncovering the real reasons behind their respective positions. Anne has a revelation that she doesn’t need to own the house outright; she just wants to maintain and preserve her emotional connection to the building. Similarly, Gilbert realizes that an immediate transfer to their son isn’t necessary, as his primary concern is securing the house for their son’s future. With this new understanding, they decide to place the house into a family trust, which allows Anne to retain lifelong usage rights while guaranteeing that the property will eventually fall under the ownership of their son. They revise their respective estate plans to align with their agreement.
Principle #3: Brainstorm Many Options Before Deciding
Generating a wide range of possible solutions from these interests is key. It is important to keep the process of coming up with these ideas entirely separate from the process of evaluating them critically, as letting your judgment limit your creativity can set boundaries that may be hard to break out of later. First, you need to brainstorm many possibilities, then review and refine the best ones afterward. Creating a variety of potential agreements with different levels of commitment and flexibility is also essential, so you can later weigh these options against each other and identify your top priorities. Offering many options that accommodate the other party’s concerns makes it much easier for them to say yes.
Furthermore, try to assume the position of different experts and consider the situation through the eyes of various specialists. For example, in the case of a divorce, putting yourself in the shoes of a family therapist could help you rationalize the emotional impact the divorce may have on the relationships formed between the separated parties and their children. A financial advisor’s perspective could help you understand the tax implications of the split. An attorney’s viewpoint can help you emphasize fairness in the process. Through viewing the situation from multiple angles, you are able to craft a well-rounded, comprehensive, and agreeable solution for all.
Case Study: Creative Solutions That Protected Everyone’s Interests
Homer and Lisa had an amicable divorce but felt overwhelmed by the many decisions they needed to make regarding their estate plan. They began by outlining their priorities: Lisa wanted to ensure the children would be financially secure if anything happened to her, Homer hoped to keep the house for a few more years, and both wanted to avoid ever going to court again. They considered the perspectives of relevant experts—recognizing that a financial planner would advise them to evaluate the long-term tax implications of dividing retirement assets, while an estate attorney would recommend reassessing the structure of their trusts.
From these reflections, they generated a list of ideas: naming each other as backup guardians in case of emergency, dividing retirement accounts in a way that minimized tax burdens, creating a trust to manage the children’s inheritance until they turned 30, updating their wills so assets would pass directly to their children, and deciding whether to maintain joint ownership of the family home. These ideas were further refined with the guidance of an attorney.
Principle #4: Use Objective Standards for Fair, Lasting Outcomes
The final hallmark of the Harvard negotiation approach is using objective standards instead of relying on emotions, personal expectations, or sheer willpower—meaning, you must ground your decisions in fair, consistent principles (these can be found in things like judicial precedents, financial or tax regulations, and statistical data). By reframing each issue to identify a set of neutral, fact-based principles, it is much easier to reach decisions that feel just to all parties involved. Moreover, it helps you justify your position in a way that is not only more logical and credible but also less likely to escalate into conflict.
Case Study: Settling a Property Dispute with Facts, Not Feelings
Leslie and Ben are having trouble dividing a family home, as they have no children who could inherit the property. Leslie, having no attachment to the house, wants to sell it for profit and split the proceeds equally between them. On the other hand, Ben wants to rent it out as an investment. He doesn’t want to go through the trouble of selling and argues that Leslie is missing out on a valuable source of income, while Leslie feels frustrated and wants to sever all ties to the house where their marriage fell apart.
Without using objective criteria, Ben would have won by simply outshouting Leslie and gaining the upper hand in the argument. However, if they had used objective criteria, the outcome would have been much more balanced. To start, they obtained a market valuation of the house to see its potential sale price. They also received a rental income projection based on similar nearby properties. Additionally, the attorney they hired provided examples of similar probate cases and explained how courts in their jurisdiction handle jointly inherited property. From this assessment, they were able to evaluate both options fairly and make a decision based on facts rather than emotions or who spoke louder. They ended up selling the house, as the rental gain was predicted to be lower than the effort Ben was to put into maintaining it.
Conclusion: Redefining Divorce as a Tool for Future Planning
Estate planning is challenging under the best of circumstances, but in the wake of a divorce, it can feel especially daunting. However, by applying the principled negotiation strategies outlined in Getting to Yes, many divorcing couples in New York are discovering unexpected common ground—not only redefining what it means to separate, but also finding ways to plan for the future with clarity and mutual respect.
If you’re considering a separation, it’s wise to not only embrace these principles but to further work closely with an experienced estate planning attorney who can help you navigate this complex transition with care and foresight. After filing for divorce, it’s also strongly recommended to implement effective asset protection strategies—such as establishing revocable or irrevocable trusts and updating your will to ensure timely and intentional asset transfers. If you need assistance, do not hesitate to contact the Law Office of Inna Fershteyn at (718) 333–2394 to ensure the best estate plan for your future.