McKenzie Grace Massarelli

Confidential Memorandum Summarizing the Negotiation Process

Client: Tina [Wife]

Goals & Strategies going into the negotiation.

After consulting with Tina we narrowed down her biggest concerns

regarding the separation to (1) the trust which her two children were beneficiaries

of being conditioned on being raised in the “manner and tradition of the Greens;”

(2) Rick’s parenting skills concerning their daughter Diane; (3) her apprehension of

having to communicate directly with Rick regarding childrearing; (4) her children’s

religious upbringing; (5) her desire to avoid trial; (6) her wish for as much financial

support as possible and lastly, (7) keeping the marital home.

Given her seven primary goals, we strategized as to what we could offer or

leverage over the opposing side to get her the best possible outcome. We

considered what could be put into a separation agreement to enforce the

continuation of our client’s goals being maintained by her ex-spouse after the

agreement had been executed. Before heading into negotiations, we prepared an

equitable distribution spreadsheet of all the assets and liabilities coming from the

marriage. We started with the presumed 50-50 distribution and then applied the

factors the court uses under N.C. Gen. Stat. § 50-20(c) when deciding if an unequal

distribution is equitable. A few of the factors we relied on to support an unequal

distribution were the direct and indirect contributions made by Tina during Rick’s

law school career, the parties financial needs, the grossly disproportionate incomes

of both parties at the time of the distribution, and the potential earning capacity of

both parties.

Issues on which we prevailed and which we compromised.

 (1) We were able to get a favorable outcome with the trust by adding a

provision in the agreement that the children will be raised in the continuing

“manner and tradition of the Greens,” in order to ensure the children got the

benefit from the trust once it is distributed.

(2) Next, with our client’s apprehension over her ex-spouses parenting skills,

we negotiated in the agreement a mandatory six counseling sessions with a focus

on working toward co-parenting skills as well as the issue of supporting Diane in

her continued soccer participation. Further, the cost of the sessions was negotiated

to be paid for by Rick in the entirety.

(3) With our client’s concern regarding communicating with Rick regarding

childrearing, we agreed upon a parenting coordinator being appointed by the court

for the next six months and her re-appointment to be contingent on the progress

made in the six counseling sessions.

(4) Concerning the children’s religious upbringing, when negotiating with

Rick’s attorneys, it became apparent that introducing the children to his Jewish

faith was not a big concern for him and he was happy to continue raising the

children in accordance with their upbringing in the Catholic faith. Religious

upbringing seemed to be a non-issue.

(5) In our client’s desire to avoid trial, we negotiated a mandatory mediation

and/or arbitration clause for any issue arising out of the terms of the agreement

before proceeding to trial.

(6) Next, we were able to settle on an amount of alimony which will provide

for all of our clients’ monthly expenses including additional schooling. There is an

additional amount of support, around $909 a month, which is contingent on our

client’s enrollment in school. Over the span of 5.5 years of alimony it will equate to
the entire cost of her program of $60,000. Given she will be doing a part time

program, as agreed, we believed monthly payments was equitable and did not push

for a lump sum payout. The 5.5 years of alimony will terminate upon death, re-

marriage, or cohabitation of our client, whichever is to occur first.

(7) Lastly, our client was able to keep the marital residence as well as take

the tax deduction from the interest of the mortgage. In consideration of this, our

client will sell her West Virginia property, which was her sole property by way of

inheritance, and pay the $100,000 to Rick.

Compromise was reached in giving him the $5,000 in the checking account.

Although, we negotiated that this transaction would negate anything our client

owed to her ex-spouse for the repairs made on the marital home since the date of

separation. Further, we conceded that it was equitable for Rick to take the

duplicative furniture with the value of $6,000 given that the marital home is

adequately furnished with the $12,000 worth of furniture we negotiated would stay

in the marital home.

The likelihood that our client will accept the draft as negotiated.

It is highly likely that our client will accept the draft as negotiated as we met

each of her primary concerns as well as saved her pension plan from being split,

established the medical expenses after the deductible had been paid would be split

70/30, with our client only being responsible for 30%. With this we had to

negotiate that the 70/30 split would be final and not subject to re-negotiation in the

event of increased salaries of either of the parties. Even though it is likely that our

client will have an increase in salary after obtaining her degree, it is almost certain

Rick’s income will increase which would have given him the ability to cover 100%
instead of 70% of medical expenses. This disparity, we believe, is made equal by

Rick being responsible for 100% of the premium payment for the children’s health

insurance each month. The biggest reason it is likely that our client will take this

draft as negotiated is that we negotiated for her to have primary physical custody

with joint custody only to legal custody. This means her overnights are unlikely to

deviate from the current arrangement aside from holidays/summer vacations/and

birthdays. This is advantageous in terms of receiving favorable child support.

The likelihood that the other party will accept the draft as negotiated.

Although the lawyers for Rick seemed confident that he was to agree to the

terms negotiated as final, I am apprehensive to say whether he will agree to all of

the terms. Namely, his law school loan being solely his responsibility, as well as the

amount of alimony. We would argue that his law school debt is solely his property

as the marriage never benefited from the degree, given he left shortly after

graduating. Secondly, he is able to pay the negotiated amount of alimony

considering his future earning potential and expected yearly bonuses.

How our negotiation strategy affected the outcome of the dispute, what
worked and what we would do differently.

The negotiations went well namely because of my and my co-counsel’s prior

preparation. When we came to the negotiation with the equitable distribution

spreadsheet as well as all of the math that brought us to the numbers, we believe

made it harder to argue that we were trying to snub their client out of a fair deal.

The numbers we reached were equitable given the circumstances and the support
we had from both statute, case law, and experience with the current family law

judges gave us an advantage over the negotiations as well.

Our experience of the negotiation process; cooperative or competitive, or

other and how that impacted our outcome.

I am extremely pleased with the outcome we reached for our client and

believe the ability to have a communicative negotiation was a big part in our

success. The other lawyers were highly agreeable and might not have been

thinking of what their client would be saying had he been sitting there. Both myself

and my co-counsel fiercely, yet fairly, advocated for our client to ensure she got the

best possible outcome in her set of circumstances. Both sides were willing to

negotiate and move numbers around instead of stonewalling the other with a lack

of willingness to compromise; this open communication and compromise was

essential to the outcome of this case.