Posts Tagged ‘family law’

Value for Your Attorney Fees: Avoiding Future Disputes

The cost of divorce is top of mind for almost every client that I serve.  In my experience the amount of income and net worth have very little impact on how much someone worries about this issue.  

The reality is that many divorces involve complex emotional, financial, and legal issues and therefore take some time to problem solve to resolution.  So, it is very important that clients get as much value from what they pay for their divorce process as possible.  

One of the best ways that attorneys can add value to a client’s use of resources on their divorce is to help them avoid future expenditures on legal issues.  When I was litigating adversarial family law cases in court, clients almost always grossly underestimated the amount that they would spend in the years after their first round of court hearings.  This was because the adversarial nature of the court process planted seeds of anger, resentment, distrust, and vindictiveness that I knew would sprout into fields of future conflict.  And, this future conflict often costs multiples of the amount spent in the initial round of conflict.

The best way to prevent this, in my experience, is to resolve the first round of conflict in a way that prevents, or at least greatly reduces the likelihood of future adversarial conflict that would require legal fees.  That is essentially the main goal of Collaborative Law. 

While this is a core tenet of my practice, it came to mind most recently while reading a study on shared parenting which stated:

“Shared custody – like any other parenting arrangement – can work well or poorly depending on a range of factors.  Moreover…life changes may eventually present new challenges, and helping parents understand and be more prepared for future issues that would need to be addressed if they are to continue sharing parenting could prevent future difficulties.” The Growth in Shared Custody in the United States: Patterns and Implications, Meyer, D, Cancian, M., and Cook, S. Family Court Review, V. 55, No. 4, October 2017

I have previously discussed the difference between answers and solutions in legal matters. Answers give you an immediate instruction of what you will do now.  Solutions give you not only an immediate answer, but a plan and process for handling the “future issues” that invariably come up for families after their separation agreement is signed.

In a collaborative divorce, communication patterns are identified, modified to be more productive, and new communication and conflict resolution skills are learned.  These underlying issues are rarely addressed in a court proceeding or traditional negotiation. So, while courts can give families an immediate answer, they are far less able to provide the tools and solutions that will help avoid future legal fees.

The aim is that, when future issues arise, the parties feel competent and confident in finding their own solution instead of calling an attorney to re-ignite the adversarial process.   If that doesn’t work, they can enlist their collaborative attorneys, financial neutral, or child specialist to help them over a rough spot without falling into the endless pattern of litigation or incurring high legal fees.  Those fees saved are the same as extra money earned.

As the saying goes, the only constant is change. Changes will happen after your separation agreement is signed and your divorce is finalized.  In order to get the most value from your time and money spent, choose a process that will help both of you handle future issues more productively down the road so that you won’t need to involve courts or attorneys for the “future issues”.  

Legal Resolution v. Conflict Resolution

I expect that any experienced attorney, and especially any experienced divorce attorney, has experienced the difference between resolving the legal issues in a case and resolving the conflict in a case.

There is a big difference.  

There are many family law cases in which a judge enters an order resolving the legal issues in a case, only to see that same family over and over again year after year.  Each time that family appears the judge resolves the legal issue at issue and sends them away, only to have them re-appear again with some new (or not so new) legal issue. (These are the most lucrative clients for a family law attorney, by the way). 

The reason for this revolving door on the courthouse is that while the legal issues in the case get resolved, the conflict does not.  And in family law, it is the conflict that births the legal issues, not the other way around.  However, the way the legal issues are handled often fuels the conflict, which in turn fuels more legal issues. It becomes a feedback loop.

This is perhaps the biggest limitation of the legal system when it comes to family conflict and divorce.   A judge can issue orders to fill several court files, but the judge is almost powerless to resolve the underlying conflicts that fuel the legal issues.  Judges can and do order family therapy in some cases to try to address the deeper dynamics at the root of the problem.  But, that is not the norm, and it frequently comes so late in the game that real change is difficult.

To get to the root of the problem the conflict between parents or spouses needs to be addressed.  Legal issues and problems are symptoms of the conflict.  A judge can treat the symptoms, but it takes skilled lawyers and other professionals to work on a cure.  

The legal profession as a whole, in my experience, has been narrowly focused on treating symptoms for family law clients instead of working on the root causes.  In some ways that makes sense; lawyers are trained from law school through their early years of legal work to learn how to deal with legal problems.  They are not trained to deal with anything deeper than the legal issue involved.  And many lawyers have no desire to look behind the legal issues to the root of the conflict.  It may come as a surprise that many lawyers, including family lawyers, are not comfortable with the emotions that are behind the curtain and don’t possess the skills to effectively handle them. 

To be fair, some clients who hire a family law attorney have no interest in looking at the conflict either, and only want an attorney that will get the best legal outcome possible, regardless of collateral damage, or the feedback loop.  Those attorneys don’t have the opportunity to address the conflict if their clients are not interested or able.

But, in my experience, most clients are open to addressing the actual conflict if they are shown in the early stages how that conflict is fueling the legal issues and that addressing the conflict will likely reduce or eliminate future legal problems.  It is not easy or fun.  It certainly takes maturity and self-discipline.  But it is possible and it is possible in many more cases than it is offered.

If you are facing a divorce or family law issues, give some thought to whether you prefer to address a string of legal issues for years, or address the conflict upfront to avoid a string of legal issues for years.  And find an attorney that is willing and able to help you do that.