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 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.