What Divorce Attorneys (and Clients) Should Learn From Dr. Seuss

I’ve got young kids and there are no books I enjoy reading to them more than Dr. Seuss.  The lessons, philosophy and morality packed into each of his stories is truly genius. I recently read the read The Zax again and was reminded how apropos it was for a divorce lawyer and my clients. Here’s a refresher for you: Just as the north going Zax and the south going Zax find themselves at odds and refuse to move, many divorce attorneys and their clients do the same in trying to resolve family disputes and divorces.  And, just as the Zax waste their lives in intractable conflict while the world goes on around them, many clients are lead to waste time and money in intractable court battles or negotiations. (A telling part of the story is when the South Going Zax boasts that he was taught to handle conflict this way in South Going (read, law) school!) It is easy to see that the Zax are silly to act on their principles because their principles seem so inane to us. But, to the Zax, those principles are everything.  Those principles mean as much to the Zax as our children, financial security and peace of mind mean to us. So, the real lesson is that often in the world, even deeply held principle must give way to creative problem solving.  Otherwise, we would all still be standing in front of the first Zax that we came across. And we would miss the opportunity to resolve the conflict so that we could again focus on our children, financial security and peace of mind. If you are facing a divorce, or are in the middle of the divorce, think about whether you (or your attorney) are a Zax and what you are missing (or spending) while you stand there defending your principle.  Perhaps refusing to budge is your best strategy, but perhaps altering course slightly will get you to your goal quicker.

Being Tough in Divorce

What does it mean to be tough? In divorce, most people (including many lawyers) believe that it means “sticking to your guns”, never compromising, issuing the bigger threats, puffing more, “big talk”, using intimidation. In the name of toughness, people are frequently encouraged to be uncaring, to deny any empathy for their spouse, and to turn off all humane or positive feelings about their marriage and their spouse. That’s one way to do it.

Move Towards Alimony Formulas in North Carolina?

CalculatorAt least in North Carolina, alimony (including post-separation support (PSS)) is one of the least predictable outcomes in family law.  There are 15 factors listed in the alimony statute that must be considered, plus a catch all factor.  Once those factors have been considered, a family court judge must make an award (or not) that she finds to be “equitable”.  “Equitable” is legalese for “fair”.

Shared Parenting Bill in North Carolina Senate

Children quoteCustody disputes have been highly problematic for clients, attorneys and the courts for a long time.  They are emotionally charged trials with often little evidence that points clearly towards one parent or the other as being  a better option.  So, judges are left to decide a child’s fate based on a noble, but nebulous standard of “the best interests of the child”. And, due to the repetitive nature of these cases, a court frequently has to decide these cases multiple times for just one child. The most common issue in these trials is the schedule of overnights. That is, how many nights will a child spend with each parent, and how will those nights be structured?  While this answer has financial implications due to the child support guidelines, it is largely an emotional issue for clients.  Parents often see the distribution of overnight visits as a proxy for their relative parenting value, a symbolic judgment by the court that one of them is “better” for the kids than the other.  If there has been conflict over parenting during the relationship, then the court’s divvying up of overnights frequently takes on an emotional meaning for parents that goes far beyond the practical impacts. For these emotional reasons, parents litigate custody actions far more than the legal and practical realities would otherwise dictate.  The irony of course being that the court fight itself runs contrary to the best interest of the child. And these often needless lawsuits serve as a severe drain on the court system, preventing the courts from addressing cases where children are in actual need of court protection and intervention. To try to address this dynamic two North Carolina Senators have proposed Senate Bill 711.  This bill’s short title is the Presumption of Shared Parenting Act .  The bill would rewrite the primary child custody statute in North Carolina. The first section of the proposed law sets forth a statement of North Carolina’s public policy regarding parenting of children whose custody is in question.  The first listed policy is  to “Encourage child-centered joint parenting agreement [sic] to reduce litigation over child custody matters.” The remaining policy statements collectively state that North Carolina’s policy is to encourage maximum contact between a child and each parent, that the courts should PRESUME that both parents are fit parents and that the parents’ inability to get along with each other should not be used to overcome this presumption. The statute then creates a legal presumption that “each parent will share as close to an equal amount of time with the child, but not less than thirty-five percent (35%) of the amount of time with the child as research currently suggests.” First, it is important to note that this law would make official North Carolina’s policy of encouraging parents to agree to a co-parenting plan on their own and not bring these issues to the courts.  This is a policy that I would certainly encourage.  When the very government that will be making the decision about your kids is telling you that they don’t want to make decisions about your kids, then maybe we should listen…This policy really is an admonishment to parents to act like adults and handle their co-parenting issues in a reasonable way outside of court. Secondly, the law would create a new legal presumption in custody cases. In reality, this presumption probably just makes explicit the assumption that many judges make at the beginning of a case.  That assumption is that both parents in a case are valuable and capable of parenting their children in an acceptable manner, unless somebody proves otherwise.  But, those judges that do harbor conscious or subconscious biases towards one parent role or the other would have to start from a different starting point if this law is passed. This presumption would probably function much like the current legal presumptions of a 50/50 split of marital property in equitable distribution or the presumption that the child support guidelines will be used in a child support case.  That is, somebody will have to present a fairly compelling reason (some of which are mentioned in the bill) as to why a child would not benefit from roughly equal time with each parent before a judge could legally stray from the presumption. Further, the presumption is given some clear(ish) lines by creating a floor of 35% of the time with each parent.  The bill as currently written is not clear enough on this point, however.  It does not state what “time” means.  Does it mean 35% of the overnights?  Is that 35% of the overnights in a month, a year?  Or, is it 35% of the hours in a day, week, month or year? Regardless of the exact eventual meaning, the number gives a clear indication of what is considered roughly equal time with each parent under this bill.  Anything outside of that range and the court would have some explaining to do, literally.  The trial court would have to include sufficient findings in its custody order to justify altering the 35% floor. The practical effect would, most likely, be that attorneys would have a stronger basis upon which to predict the outcomes of potential custody suits for their clients.  Much like the 50/50 property distribution presumption and child support guidelines in place now, the 35% presumption would narrow the range of predicted outcomes such that the resolution of cases would be easier.   A narrow range of predicted outcomes facilitates settlement (as can a very wide range for risk reasons, but the current situation creates a range of outcomes that is neither predictable enough to force settlement nor risky enough to scare everybody into settlement). The bill is currently sitting on the desk of the rules committee, which, to my understanding, means that it is probably dead for now.  But, given the constant and unsustainable burden on the courts created by custody cases, and family law cases in general, this bill or a future iteration will probably make its way to a vote in the not too distant future.  It will be fascinating to see what policies are delineated in that version. (P.S. If the Legislature really wants to lower the number of cases in family court, an alimony formula or presumption would perhaps go even further than a child custody presumption.) photo credit: <a href=”http://www.flickr.com/photos/85608594@N00/15300693940″>Carl Jung Children are educated by what the grown-up is and not by his talk</a> via <a href=”http://photopin.com”>photopin</a> <a href=”https://creativecommons.org/licenses/by/2.0/”>(license)</a>

Analytics: “There aren’t many clear cut ‘winners’ in domestic proceedings.”

Analytics Analytics has confirmed what family law attorneys have known anecdotally for a long time:  There are not many clear cut winners in divorce cases in court. Analytics has taken root in almost every industry in the world. Now it’s even made it’s way to the notoriously mushy world of family law. As described in this article in the Miami Herald, an analytics firm recently dug into data from litigated (i.e. outcome decided by a judge) family law cases in Miami.  The results paint a pretty ugly picture for anyone considering asking a court to determine their divorce and related legal outcomes. According to the researchers, the results of the analysis revealed three important dynamics: 1. Favoritism exists: Judges appear to have favorite lawyers and those favorites fare better with those judges. 2. Big firms offer a 7% outcome benefit, but for a significantly higher cost. 3. More expensive attorneys do not win more than less expensive attorneys. There are some caveats to be mentioned here in my mind:  First, it could be that good lawyers choose their battles more effectively, settle their weaker cases or prepare more effectively; and that could be why they have higher win rates with particular judges.  Favoritism is one possible explanation, but it may not be the correct one.  The numbers are curious nonetheless. Another caveat is given by the authors, but it is even more alarming than the results!  The researchers admit that “determining win rates is highly problematic.”  Why?  Because, “there really aren’t many clear ‘winners’ in domestic proceedings.” The researchers go so far as to claim that “Family law is the Wild West of the Legal profession.”  (Que the Gunsmoke theme music) Given all of this, it seems that a savvy consumer would steer clear of court when getting divorced.  Choosing a process that allows them to determine their own outcome and allows both parties to define their own “win” seems to me to be a far better choice than “the Wild West.” The good news is that in North Carolina, there are great alternatives to the Wild West. Collaborative Law allows a divorcing couple to keep their divorce out of high noon duels in the courtroom.  It allows a couple to sit down and negotiate a resolution face to face with the help of their attorneys, and other professionals.  There are no bullets to dodge, no posses to round up (and pay), and no hired guns to fear. The objective evidence against getting a positive divorce outcome in court continues to mount.  It’s a good thing alternatives exist.  

How I Care for Divorcing Clients

   
Icon made by Freepik from www.flaticon.com

Icon made by Freepik from www.flaticon.com

    On Caring by Milton Mayerhoff is one of the most personally important and impactful books that I have ever read, and probably will ever read. It is a summary and explanation of what it means to care for oneself and others, both philosophically and practically. I had been practicing law for over a decade before I found the book.  But, one particular passage succinctly described the guiding principle that I had developed for my representation of, and caring for, clients:

When I care for an adult…I try to avoid making decisions for him.  I help him make his own decisions by providing information, suggesting alternatives, and pointing out possible consequences, but all along I realize that they are his decisions to make and not my own.

To my mind, this passage is the foundation for effectively helping clients through a divorce. Some attorneys have trouble allowing clients to make their own decisions, and feel compelled to “guide” clients to making whatever decision the attorney himself would make in that situation. And, while it is not always easy, remembering that a client’s decisions are hers to make and not my own, is the key to effectively helping her make those decisions.  And, that, so far as I have come to understand it, is the key to truly caring for clients.

Why Smart People Can Have Dumb Divorces

Left brain = logical thinking Right brain = emotional thinking

Left brain = logical thinking
Right brain = emotional thinking

Working in Research Triangle Park (Raleigh, Durham, Chapel Hill) a region renowned for its education level, I have the privilege of working with a lot of very smart people.  Doctors, professors, business executives, entrepreneurs, nurses, techies, and domestic geniuses all bring healthy IQ’s to the collaborative divorce conference, mediation or negotiating table. Certainly raw intelligence helps in a divorce.  The ability to learn, process and analyze complex legal issues and numbers is immensely helpful to efficiently resolving a divorce. But, in my experience, it pales in comparison to the ability to recognize, understand, process and deftly handle the emotional component of divorce, both in yourself and in your spouse.

Why Arguing is So Expensive in Divorce

In divorce, time is money.  Most divorce attorneys charge by 6 minute increments.  That means that you are going to pay anywhere from $2.50 to $7.50 or more per minute for your divorce attorney’s work. Legal BillI would be greatly concerned about using my attorney efficiently.  I would want more money going into my pocket, my kids’ college, or my retirement than to attorneys. To be sure, skimping on an attorney for a divorce is not a good idea.  That can lead to very expensive mistakes. But, paying more than necessary for your attorney can be avoided. In my experience, the number one factor in the legal fees in a divorce is not the hourly rate of an attorney.  Rather, it is the amount of time that a client pays an attorney to do things other than help resolve their case.