The Thoughtful Divorce

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.   

We know what we want to do. Why do we need lawyers?

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. 

 

 

Why You Shouldn’t Let Your Attorney Take Over Your Divorce

“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.  

Getting Your Divorce Ship to Shore

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.  

What You Need to Know About the Divorce Industry

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.

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”.