“I hear and I forget. I see and I remember. I do and I understand.” – Confucius
Divorce is often a confusing, anxious time. People often report feeling as if they are the mercy of “the system”, the law, their spouse, the attorneys, or the courts in their divorce. This feeling of helplessness and loss of control only exacerbates the already difficult feelings of loss, grief, and worry that come with any divorce.
Ironically, people frequently respond to these feelings by relinquishing more control and letting their attorneys and the courts take over their divorce process. They are consulted periodically, but the attorneys handle the financial analysis, the negotiation, the strategic decision making and the other important parts of a divorce case. The courts dictate the what, when and where.
In my view, this is counterproductive because it only adds to the feelings of anxiety and loss of control. It provides a short-term feeling of relief because it takes some things off of your plate in the short term.
But, long-term, it leads to less satisfactory outcomes for clients. First, when you are not involved in the details of your divorce process, then you are far less likely to like your outcome over time. You will not remember the decision-making process that led you to your outcome. That may cause you to look back on your process and your outcome with confusion and doubt. Second, when you are intimately involved in your divorce process, you will have far more understanding of the financial, legal and personal dynamics at play in your divorce. You will not have to take your attorney’s word for what is going on and the possible solutions. Instead, you will be processing it as it happens and be involved in generating the solutions to the issues. That typically means that you will have a fuller understanding of how and why you reached the solutions that will shape your post-divorce life. In my experience that leads to clients feeling more in control, more satisfied, and less victimized after their divorce. Third, many clients grow frustrated because so much of the work an attorney does is outside of the presence of the client. A client will get a bill, but not have actually seen the work performed because they are largely detached from the work itself. In a collaborative process, the client is sitting beside their attorney for much of the time and has immediate knowledge of what their attorney is doing and how they are doing it. There is much less “mystery time” involved in your legal fees when you are an active participant in your case.
Certainly, some cases require you to involve the courts and litigation attorneys. And no one gets to dictate the terms of their divorce just as they would like.
But, there are enormous benefits to being an active participant in, and having a thorough understanding of the decisions and the decision-making process of your divorce. The only way that I know to do that is to participate in a divorce process that involves you not delegating the analysis, problem-solving and decision making, but rather taking an active role with your attorney in those facets. You do, and you understand.
I am sometimes asked by prospective clients “Why do we need lawyers when we basically agree on everything already?” It is a fair, logical and reasonable question.
One analogy that I use (with some poetic license) to explain this is that divorce is akin to a sea voyage. You have to get from where you are, which is knowing that you are separating, to where you want to be (want is a relative term here), which is having the legal and other issues of your divorce resolved so everyone can begin healing and building new futures. And you have to do that while protecting the precious cargo of your children, your life savings, and your mental health.
Like a voyage, the divorce process often feels long, difficult, dangerous, and harrowing. It frequently feels like you are subject to forces outside your control and you wonder how and whether the experience will ever end.
You know your ship and cargo, but you don’t know the waters. You know yourself, your spouse, your children, your finances, your goals, and your worries. But, you don’t know divorce law, you’re not a trained expert at negotiation, and you’ve never sailed into this particular port.
The real value of a divorce attorney is that they know what you don’t know. They know the waters, currents, shoals, and the shifting sandbars of the law and tax code. They are your harbor pilot. They get you the last but hardest bit of the way to your resolution.
If you are lucky, then you and your spouse can safely sail the ship a good bit of the way yourselves, agreeing to the basic terms of how you will co-parent your children, provide for their financial support, divide your property and debts, and meet the financial needs of two households.
But even in that case, you will need good harbor pilots to get the ship safely to the dock and avoid the unknown, unforeseen, and hidden dangers that lurk beneath the surface of this unfamiliar harbor. There are many hidden details to be sorted out in any divorce, traps that can wreck your agreements, and channels that you may not have seen that may better suit your case.
In truth, in most cases, divorce attorneys are needed for the entire voyage. But even in cases where you can handle most of the journey yourself, you will need a good harbor pilot to get you safely to the dock. Most lawyers who have practiced long enough have seen a case break apart on a rock that the parties never saw coming. A good lawyer can help you avoid that rock and safely reach the end of your divorce journey.
If you are facing a separation and divorce, and looking for legal counsel, then you need to be an educated consumer of legal services. That means doing your research, meeting someone before you hire them, and understanding what kind of lawyer you are hiring and the processes by which that attorney is going to help you.
This helps protect you from a dynamic within the legal profession described by a colleague in a recent article as follows:
What does this mean? It means that more and more lawyers are competing for the same clients. This encourages lawyers in consults to bad mouth other lawyers and convince clients that they are superior and should be hired. It also encourages the starving lawyer to “churn” the case or to lead their clients down the more expensive and painful path of litigation rather than the often times superior (but less lucrative) choice to attempt to resolve a case. Finally, it encourages the lawyer to “show off” for their client in Court and in nasty emails and letters. (Whether it helps the case or not.)
Contrary to popular opinion, the majority of family law and divorce attorney are dignified, mature professionals who would not sacrifice their integrity to gain or keep a client, to make more money or to “win” a case. But, all of those lawyers (and the judges) know colleagues that employ the tactics described above and ruin the reputation of the entire profession.
The problem is that you can’t know whether any particular attorney is going to lead you down this path without doing your homework. So, be mindful of the dynamic described above and hire an attorney that you are confident is not going to drag you into it with them. If you are considering an attorney and hear them badmouth other lawyers or your spouse, or they aren’t willing to truly help you avoid litigation when appropriate, then give some thought to whether that attorney is right for you.
The reality is that many, if not most, expensive divorces feed off of anger and clients that cannot reign in their emotional behavior. Certainly, complex legal questions and difficult situations play a part as well. But, as a consumer of legal services, you need to be very intentional about whether you are hiring an attorney that will fan the flames of conflict and thereby increase the time and cost of your divorce or reduce the time and cost by dampening strong client emotions and focusing on problem-solving.
This Tedx video by David Hoffman explains why I do what I do at least as well or better than I can. It is powerful for me and hopefully for others. And, I think it explains the intellectual, professional and emotional journey for those layers who have chosen to be peace makers. Enjoy.
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.
Blame is a big dynamic in both marriage and divorce. And yet, it almost never moves clients towards their goals. Brené Brown (yes, I am a special fan of hers simply for the use of the accent in her name) does a great job of breaking blame down into what it is at it’s heart: an expression of pain or frustration:
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.
At 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”.
Custody 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 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.