In any setting, the purpose of negotiation is to achieve a better outcome than if you don’t negotiate.
Once the decision to separate or divorce is made, you’ll typically need to go through the motions of a negotiation to achieve an outcome—whether it’s about your financial split, maintenance, financial support for the kids or their care arrangements.
I like to call it the ‘agreement discussion’ because it’s a softer term than ‘negotiation’ and you’ll literally be having a discussion about reaching an agreement.
The idea of having a (financial) backup plan is to stop you from falling into the trap of accepting an outcome that’s wrong for you, either because you’ve been worn down and are giving in, you want to avoid confrontation, or you prioritise remaining on good terms with your partner to your detriment, thereby compromising your interests.
In their international bestseller, Getting to Yes: Negotiating an Agreement Without Giving In, Roger Fisher and William Ury (2012)(which is a terrific read!!) coined the BATNA concept, which stands for ‘best alternative to a negotiated agreement’. They describe BATNA as a plan to develop regarding the steps that a party can act on if a final agreement isn’t reached. I’d say the majority of good family lawyers have read this book and understand and implement its principles in their practice.
To put this into context, your backup plan isn’t to go and see a lawyer to fight it out in court if you and your partner don’t agree. It’s more practical than that. In the context of your financial split, it’s actually the decision about what you’ll do with your property, debts and superannuation until such time as you reach a final agreement.
Preparing a back up plan will mean that you’ll have the ability to compare proposals out during the agreement discussion to your backup plan and work out which appeals to you more.
Doing so minimises the risk of you compromising your interests. You’re not going in positional, with a specific outcome that you want, or with a closed mind. There is no bottom line or buffer for what you’re willing to accept or not. Psychologically knowing that you have a well thought through tentative backup plan about what you’ll do if you don’t reach a final agreement can give you that extra oomph of confidence when or if you decide to walk away from the agreement discussion.