One of the core tenets of my practice is that people need to be very thoughtful and very intentional about how they are going to go through the divorce process. If they don’t want a big nasty fight, then they need to take the steps necessary to avoid a big nasty fight. If they want to fight, so be it; that can be a valid choice. But that needs to be an intentional choice, not something you fall in to.
The point is that you don’t want to fall into a certain kind of divorce by accident. You want the tone, tenor, and structure of your divorce process to be the one you and your spouse choose, not the default process of your attorneys.
But to do that you have to start with the end in mind. What kind of relationship do you want to have with your spouse down the road? What kind of relationship do you want to have with your kids down the road? What kind of relationship do you want your kids to have with the other parent? Do you want to stress your kids out when they are planning their wedding because you and your ex never healed? Do you want to lose out on time with your kids and grandkids because they have to divide their family time between divorced parents who can’t be in the same place? Do you prefer to fund your children’s college or your attorney’s children’s college?
I think these are the concepts that the divorce attorney to the stars, Laura Wasser, is touching on in her recent interview about the new movie Marriage Story.
In discussing a character’s super aggressive divorce attorney she says “If you don’t want to end up like these people, and have somebody like this representing your spouse, you ought to really think carefully about how you embark upon the road to divorce.”
She goes on to describe the trend of divorcing couples finding more peaceful and reasonable ways to get through their divorce: “I definitely think that, in the last five to ten years particularly, we have seen a shift in terms of more divorcing parties going to mediation, communicating more effectively…joining communities, reading things, getting educated about the process”.
Part of the reason for that is the fading of the misconception that aggressive and attacking behavior helps a client’s cause. She says she doesn’t recommend clients “…exercising bad behavior as a way to get ahead. I don’t think judicial officers find that to be something that’s worthy of being rewarded.”
Laura Wasser is just one attorney but she’s an attorney who deals in many cases where privacy is paramount, there are big financial issues at stake, and emotions run high. If she is telling her clients to be very thoughtful about their divorce process and to keep the end result in mind when choosing a process, then perhaps that’s good advice for everyone else.
Some couples can have productive conversations at the kitchen table and agree on how they want to handle the financial and co-parenting issues of their separation and divorce. And I am all for couples having these conversations as long as they are productive. I believe that the more couples are able to sort out on their own, the better for them, their families, our court system, and society in general.
These couples understandably wonder why they need an attorney if they can figure things out on their own. It is a reasonable question.
There are many reasons, but I want to focus on one in this post: the difference between what you think you have agreed to, and what you have actually agreed to.
This came to mind while reading a blog post from a financial planner about pension divisions (I know, this sounds insanely boring).
This blog points out that “Even in amicable separations, and situations in which spouses largely agree conceptually on how assets should be divided, it’s not uncommon for there to be an innocent misunderstanding at the time that, once more thoroughly understood in the future, creates animosity or financial hardship. And, in some cases, both.”
The author frames this situation as the “We agree, but don’t really understand what we’ve just agreed upon” scenario.
This is a very real risk. Clients (both collaborative divorce clients and non-collaborative divorce clients) frequently come to me with at least a partial outline of some agreed big-picture terms. However, part of my job is to dig into the details of those agreements because I am responsible for taking these conceptual agreements and turning them into fleshed-out enforceable legal agreements. And once I start asking about details, and explaining the consequences of the conceptual agreements, clients frequently realize that they did not actually understand what they were agreeing to do.
In my mind, one of the most valuable services I provide to clients is helping them to truly understand their conceptual agreements, and to help them tweak them where necessary to reach a full and detailed agreement that is legally enforceable.
Some clients are frustrated to learn that there is more work to be done and that their conceptual agreements are not the end of the journey. I certainly understand that. After all, even the conceptual agreements take energy and those conversations can be emotionally draining. It is just one of the frustrating parts of separation and divorce.
But, without that work, the innocent misunderstandings that come with conceptual agreements become the seeds of the animosity and financial hardship that everyone is trying to avoid.
So, to answer the question “We know what we want to do. Why do we need lawyers?”: The answer is that a good lawyer is there to help you truly understand what you have agreed to conceptually and find and address the innocent misunderstandings before they create animosity and financial hardship down the road.