TALES FROM THE FRONT

THE JOURNAL OF A DIVORCE LAWYER

There is nothing kind, polite or nice about a divorce unless there was no marriage to begin with and both parties are childless, jobless and brainless. While the rest of the lawyers are drafters of documents, advisors to corporations and civil litigators without being emotionally involved, the divorce attorney is the surrogate warrior for his or her client and never forgets, “you can only serve one master”. We try to bring civility to warfare, euphemisms to the battle and a blind eye to the potential for real disaster when we forget our training and simply become “pit bulls”. What do you really need to be qualified as a divorce attorney... and don’t describe the latest fashion trend. You need real experience and divorce law is not the basic experience you need. If you chose divorce law, you had better be experienced in tax law, accounting, partnership & corporate law, contract law, trial experienced (highly organized, trained to get facts into evidence and ready to argue at the drop of an objection), and psychology; be prepared to stop on a dime and react quickly to the very human client who will “love you” in one moment, doubt you the next, reject you after that, and call you in tears (yes both men and women cry) to thank you, curse you, or bless you. If that seems daunting, its only noon and the afternoon (and generally the evening) hours are still ahead. If you can’t understand the tax law effect of a trust, corporation, LLC etc, how can you advise the business man/woman about his/her stock options, deferred compensation or the simple household budget. To your average client, you are accountant, investigator, therapist, and clergy.

Here is what I mean. I am hired by a husband or wife and instructed to get a “fair settlement” and then meet with my opposing counsel who is trying to get a “fair part of my client’s assets and not compromising on his or her client’s assets” As nicely as you might want to behalf, I find that I can not be the opposing attorney’s best friend, the judge’s best “buddy” but I must represent my client. If you look at the history of conflict and as far back as the classic “Art of War” (which is on my nightstand along with a copy of “the Prince”) when the kings of old realized that there were no winners in a war and that did not really want to hurt themselves, they hired a champion who fought the champion of the other king. The Champions got tired of killing each other, and the courts of law blossomed. The conflict was just a fierce, but no one (the champions) got injured. While I can applaud mediators, and collaborative law, I still can’t figure out why its in my client’s best interest not to try to get the best deal (compromise) possible and that is the “art of war” Winning the battles without getting seriously injured in the process.

How do I apply this. Perhaps the most simple first step is after explaining to my client (note the word “my client” because once I am retained and I agree to represent the client, he or she is my primary interest and I am his or her advocate) the process, I will ask (and this is my wife’s idea) the client for his or her goals and to rank them in importance. The goal of being fair is pure bull s---t. Custody of children is always the first goal (but sometimes that isn’t really custody but “I don’t want to lose my kids” which really is input in the decision process for the children’s issues such as health, school, religion, lifestyle, place of residence, etc. In extreme cases, custody means custody and that needs to be clear if it’s the primary goal. Secondary goals have to do with preserving or obtaining income and assets so as to try to maintain a life style that he or she feel is appropriate.

It’s strictly personal and probably I will get a lot of flak from my fellow attorneys and most of the bench, but “joint custody” just does not work and it is the aspirin to take for every parenting issue. The whole idea that one parent wins and the other loses custody is repugnant to me. Parenting is more of defining the roles of each parent, the responsibilities, the obligations, and where there is conflict, the daily decisions need to be made by one parent and the other should be consulted on the more important issues (but giving veto power or power to force delay is just not workable).

Lets look at once hypothetical case from both the point of view of the husband and wife as an illustration of just how we think and the approaches we need to be able to take with the client. Husband comes in looking bewildered. He is a highly paid corporate employee who has made his way up the corporate latter with long hours and considerable sales skills. He is aware of his potential for greater income and the real possibility that tomorrow morning he could be laid off. He is middle aged, with both teen aged and young children, married 17-20 years and not only has never strayed from his wife, but doesn’t have the desire or energy. Somehow, he recognizes that the marriage is over, and he need to move on. You might say, it’s a simple matter of dividing “his assets, his 401K, etc; but, what about his “wife who stopped working a “real job” when they had their first child 16 year ago and is probably qualified (in his mind) to go to work to support herself and get a very substantial job.

The wife retains her attorney and if you didn’t understand, you would think that the husband she describes and the life she lives is not the same case as above. She is a 24/7 house keeper, nanny, home economist, business entertainer, school consultant, psychologist to the teenager daughter (or son) feeling hormones, repair man, and then she becomes the beautify sex object of her husband. She has paid her dues, her job is much tougher and hours longer than the husband’s “go to the office, make a few calls, have coffee with the customers and come home” She deserves all the money that she has scrimped and saved to fund his 401k, and now (can you imagine that “wants to go to work, earn money, and not have to be a slave to the house, husband and children” Yes these are husband and wife and we are just getting started with the factual issues that will populate the divorce courts. How do you divide the 401k, husband’s income, wife’s obligations and duties to the children, and still give each a place to live and a means to move on. Even the best juggler is the circus would find this a challenge. A lawyer in a criminal case has only to work to get his client found not guilty; the corporate attorney has to do that contract or manage that sale. The divorce attorney has 20 issues to deal with simultaneously and all this before court even begins.

There probably is no greater thrill than finishing up the divorce case; and then, you realize that in the best of all cases, neither party will ever enjoy the economic benefits of staying married, the children (no matter whether joint custody, sole custody, or some hybrid parenting arrangement) will never come home to “mom and dad”. I want to be your attorney but no one can perform magic. I can be a tenacious, aggressive, and focused advocate for your position, but you need to recognize that your marriage is over, it will not get better, and you must be prepared to move on.

What do you need to do to be a good client? First and foremost, you need to set realistic goals: custody (how much and extensive and who controls what); visitation (frequent but not disruptive); financial (the ability of your children to live “normally” with both parents involved, you spouse (ex spouse) need to be financially able to survive (there is no advantage of a man or woman collecting so much child support and alimony, that the other party has nothing left and no desire to “get up in the morning” and go to work. Finally a word about legal fees. I do this for a living and every day I am confronted with the terrible things that people do to each other and/or simply “happen”. Unfortunately the days of the knights of the round table have passed and my time is my inventory, ie I need to get paid for the time, effort and a return for the investment that prepared me to be your lawyer. I need a retainer (deposit on fees); when you call, write, email, attend meetings, send me to court etc., you are using up my time (which is limited to 24 hours a day) and its my means of living. You need to be prepared to pay for the service, I am sympathetic but I also must pay my bills and when I take on your case, I must necessarily not be able to use that time for others. I still need to be interrupted and you need to understand that there are other cases that might be closer to the end that need from time to time to interrupt your case. When your case is at this point you will understand my need to take your call or see you even when I don’t have the time.

Understand the process and the lawyer client roles and you will get through this in much better shape; no one can guarantee that there will be no pain, it’s a divorce (a break up of an emotional and business partnership usually of considerable time and investment on the part of both parties).