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”.

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.

Don’t Confuse Arguing for Negotiating

Arm WrestlingDoes your attorney argue or negotiate? Arguing is not the same as negotiating. Negotiation, at its root, is problem solving.  It is the act of solving joint problems. Arguing, by contrast, is at its best the act of trying to persuade someone to adopt your point of view. It is the act of trying to convince someone else that you are right, and they are wrong. At its worst it is trying to convince someone that that you are worthy and they are not; they are bad, and you are good. Negotiating involves a consideration of the other party’s perspective, and what they need from the negotiation.  It involves some degree of effort to meet the other party’s needs in a resolution, in recognition that resolution is a two way street. By contrast, argument ignores the other party’s part in a resolution.  It treats the other party as if their agreement is not required for resolution.  It says to the other person “You are an obstacle to me having what I want.”  That may be true, but

Flexibility and Predictability in Your Separation Agreement

 There is a point in many of my divorce cases, whether collaborative, mediation or otherwise negotiated, at which the parties ask, “How many of these details do we need to figure out, and how many can we leave open?”   The general answer is that there are some items that need to be conclusively determined, but many that do not.  But, the more useful answer is that what you nail down in detail and what you leave open to future determination or adjustment is largely a matter of personal preference. 

Making Divorce Decisions in the Face of Uncertainty

“How Do I Know if I’m Making the Right Decision?”

This is one of the most common dilemmas that people face in negotiating divorce, custody, alimony, equitable distribution and child support issues.  In fact, the fear of making the wrong decision can paralyze people and prevent them from making any decisions.  

In my last blog post, I talked about the negative impact of indecision.  The fear of making the wrong decision is one powerful fear that feeds indecision. 

However, in a divorce context or any other, making decisions in the face of uncertainty it is critical. 

The fact of the matter is that there are poor, better and best decisions.  But, there are rarely right and wrong decisions.  There are great decisions that turn out poorly and terrible decisions that work out well.  No one has a crystal ball, and even the best analysis and prediction can be laid waste by future events.  Life, as they say, is uncertain. 

Nonetheless, decisions must be made.  The best way that I know to handle the discomfort of making difficult decisions in the face of uncertain outcomes is from the book Difficult Conversations by Douglas Stone, Bruce Patton and Sheila Heen of the Harvard Negotiation Project. 

These authors give the following advice: 

Don’t spend your time looking for the one right answer about what to do.  It’s not only a useless standard, it’s crippling.  Instead, hold as your goal to think clearly as you take on the task of making a considered choice.  That is as good as any of us can do.

That is tremendous advice in both divorce and life.

 

The Importance of Expert Tax Advice in Divorce


Most people who get divorced do so without the benefit of a tax expert.  

They get tax information and/or advice from their divorce attorney.  However, as this Forbes article points out, divorce lawyers are not the best tax advisors.

In fact, most divorce lawyers go out of their way to disclaim any liability for tax advice in separation agreements and fee agreements.  

So, if you are getting a divorce, and you can’t rely on a divorce attorney for expert tax advice, what do you do? 

Collaborative attorneys figured this out a long time ago.  In a collaborative divorce case, expert tax advice comes from the financial neutral. 

The financial neutral provides unbiased neutral information and advice about tax issues that relate to divorce.  That way, both parties get the same information at the same time.  And, they are not getting in unnecessary conflicts due to differing tax advice from either their attorneys or their own individual tax advisors.  

And here’s the best part about financial neutrals in collaborative divorces:  A good piece of tax advice can save tens of thousands, if not more, for the couple.  One small piece of information can have a huge impact on the financial futures of both clients. 

On the other hand, the absence of that information can have a huge negative impact on both clients.  

Tax issues are another big reason to take advantage of the collaborative process and the financial neutrals that help clients in the process.

Empathic Communication Crucial to Negotiation

Perhaps the most crucial foundational skill of productive negotiation and communication is the ability to empathize with the other person.  Empathic communication (also known as “Non-violent communication”) is the cornerstone of the collaborative divorce process and interest based mediation. 

But, in the world of adversarial, positional and leverage based legal negotiations, this is a foreign concept.  Even today, in the vast majority of legal negotiations, the goal is not to understand the other party, but to “win”.  Period.  This seems to be especially true in divorce, custody, alimony, equitable distribution and other family law related cases.

The legal profession as a whole is simply behind the times in negotiation skills and processes. 

The business world has understood the importance of understanding and empathy between parties to a negotiation for decades.

As early as 1989, Stephen R. Covey, in his bestselling book The Seven Habits of Highly Effective People named empathic interest based communication as one of the seven habits.  Covey calls the habit “Seek First to Understand, Then To Be Understood.”

This book has been widely read and applied to the business world for over 20 years. 

Here’s what Covey has to say about empathy: 

“When I say empathic listening, I mean listening with the intent to understand.  I mean seeking first to understand, to really understand.  It’s an entirely different paradigm.”

“Empathic listening gets inside another person’s frame of reference.  You look out through it, you see the world the way they see the world, you understand their paradigm, you understand how they feel.”

“Empathy is not sympathy.  The essence of empathic listening is not that you agree with someone; it’s that you fully, deeply, understand that person, emotionally as well as intellectually.”

“Empathic listening is so powerful because it give you accurate data to work with.” 

“Next to physical survival, the greatest need of a human being is…to be understood, to be affirmed, to be validated, to be appreciated.”

“When you listen with empathy to another person, you give that person psychological air.  And after that vital need is met, you can then focus on influencing or problem solving.”

From a negotiation standpoint, the bottom line points are:

  1. That seeing the situation from the other party’s point of reference is crucial.
  2. That you do not have to agree with the viewpoint, just understand it.
  3. That empathic listening produces accurate data for the negotiation.
  4. You cannot influence the other person or problem solve until you have sought to understand the other party. 

Whether you are involved in a business negotiation or a divorce negotiation, understanding the crucial role that empathic communication plays in the conversation will be the foundation to finding an intelligent, durable and mutually beneficial resolution.