Six Things Your Lawyer Doesn't Want You To Know

Six Things Your Lawyer Doesn’t Want You To Know

 OR - Why You Should Mediate Your Divorce

1.  Children

• Your children will never thank you for destroying their other parent

• Children always know the truth of their parents’ divorce.  They will focus on it, and listen carefully to everything they hear, and piece together the story.

• The longer you are embroiled in conflict, the longer before your children can settle back into being normal kids – focusing on school, friends, music, soccer – and not on the conflict between the two people they love most in this world. 

• No lawyer or judge knows your children as well as you do, and they don’t, and never will, care about your children as much as you do.

• The legal system sees your children as pawns – who “has custody” of them?  Who “has visitation” with them?

• Actually - the words “custody” and “visitation” don’t have to appear in your parenting agreement!

• Who “visits” their children?  You want parenting time, not visiting time.  The children are not in prison. 

2.  Cost

•       Do you want to put your children through college?  Or your lawyer’s children?

•       Litigation is obscenely expensive - $100,000 to $300,000, if you end up at trial.

•        There are families for whom $300,000 is peanuts, but that is not the case for most of us.  (And they have more to fight over, so spending $300,000 might make sense to them.)

•        Lawyers have a conflict of interest around settling the case.  If an attorney stands to earn $20,000 in a negotiated divorce, and $150,000 if the case goes to trial, will he/she really put 100% of effort and focus into settling the case?  Would you?  (I’m sure many attorneys try, in good faith, to behave ethically, but we are all influenced by our own needs and potential rewards.)

•     Ask your attorney to sign an agreement to withdraw, in the event the case goes to litigation, and see how he/she reacts.  A collaborative agreement which requires mandatory withdrawal would shift the attorney’s focus toward settling, and get rid of the conflict of interest.

3.  The judge is not going to “feel your pain.” 

•          The judge will not be outraged (the way that you understandably may be) by the way your spouse betrayed you, broke all promises, ignored your marriage vows and left the marriage.  The judge has (a) heard it all before and (b) wants to give each side something. 

•        Judges have a tendency to have you win on some issues, and your ex win on others.  To split the baby.

•      You won’t see a judge for a long time, and when you do, he/she will want to hear from your lawyer, not you.

•      The judge will not be the wise parent whom you have always wished you had, and believe you deserve.

•        Judge’s dockets are too full for them to get to know you, and to put a lot of deep thought into your situation, your family, and your best outcome.

4.  Lawyers

•         Attorneys make a lot of promises they can’t keep.

•      The outcome of a trial is never a sure thing.

•          Lawyers are good about saying, “I’ll argue this, and I’ll argue that,” but not always good about telling you the arguments against you -- “And this is what your ex’s lawyer is going to argue for him/her,” or “This is the outcome that will most likely be ordered in court.”

•        The lawyer’s job is to keep fighting, and to come up with arguments to strengthen your case. 

•       The lawyer’s job is not to resolve things, to help you move on with your life.

•       Litigators are fire-fighters and they won’t focus on your house till it’s about to burn down.  Which won’t be for 2-3 years. 

 5.   Ritualized War

•                 The legal system sees the restructuring of your family as a legal problem.
• 
  
•                  If it’s a legal problem, you need lawyers to “resolve” it.
• 
  
•                   You can, instead, see it as a human/family problem, and the people who best know you, your family, your children, are in the best position to help you decide what you each need, going forward.
• 
  
•                      If you didn’t need a lawyer to get married, why do you need one to get divorced?

6.   It’s Your Life

•                       People often wish to give this whole mess to someone else – to meet with a lawyer, an expert, a  judge, who will hear their side, and understand and sympathize, and take care of it for them. (And who can blame you?  Divorce is overwhelming.)
• 
  
•                         Well – yes – most matrimonial lawyers are able to sympathize, and listen to your story, and get angry on your behalf. 
• 
  
•                          But the reality is that, once you have paid the retainer fees, you will find it very difficult to reach your attorney on the phone. 
• 
  
•                             Litigation takes up a lot of time, and attorneys are usually in court every morning, working on the cases that are ready to go to trial. 
• 
  
•                             And your case – well it won’t be ready to go to trial for 2-3 years.

The Draw of Conflict

To my mind, the costs of litigation and of fighting are so high - that I really can't imagine deciding that I would rather fight than settle.  But I guess it mainly depends on how the conflict is framed - whether you feel that there is an important principle at stake.

If you're going to fight about something having to do with the children, they will know that you are fighting in court, and they will know that one parent thinks the other is screwing them over (or both parents think the other is screwing them over) and they will feel pulled-apart and tormented and guilty, over being the subject of the parents' conflict.

If a couple has true joint custody - 50/50 time division with the children - NY State still requires some payment of child support.

There are several options:

• put in payments back and forth to each other - i.e., dad pays mom $100 on the 1st of the month, and mom pays dad $100 on the 15th of the month
• net out child support payments, based on incomes - if dad would have to pay $1,000 per month child support to mom, under the statute, and mom would have to pay $800 per month to dad, then dad pays $200 per month to mom
• analyze incomes and expenses, and allocate the shortfall equally
• put in child support to agreement and divorce papers, and enter into a "side agreement," signed 1 day after, where the recipient parent agrees not to enforce the order for child support.  This one is risky - because it's really an end-run around the courts, and it's hard to know whether it would be enforceable.  

For someone who is very economically comfortable, but feels that there is a principle at stake - "if we both have the children 50% of the time, why should I pay child support?" -  is it really worth fighting about in court?  You will end up, very quickly, spending amounts on attorney fees that are similar to what you would spend by just paying child support.  And - in general - the courts are not too sympathetic to parents who don't want to pay child support.  

Even in a 50/50 time sharing case.

But - there is, I think, an unconscious fantasy that you will teach the other person a lesson.  That he/she will finally understand how hurt you were, or how wrong he/she is - when you show that you are willing to stake more money than is in controversy, to prove him/her wrong, and you right.

I don't think anyone comes out of court feeling, "Wow, now I really get it, I was so wrong."  In fact - I don't think anyone comes out of court feeling, "Wow that was so satisfying, that judge totally understood me."  

In the divorce context, that is.

And then there is this (from the website of Geneen Roth, Vol. 6, Issue 6):

I recalled something [my ex] said during a fight we had in a spectacular restaurant. "Why not think of all the times we've celebrated and all the times we have yet to celebrate as a bank account from which we can draw funds?" he asked. "Let's put aside this fight, take some celebration savings out now, and replenish the fund when we get home."

I remember looking from him to the mushroom tart on my plate, thinking, I could let this horrible fight go. I could enjoy this tart, and we could have a wonderful time.  Then I thought, 'but if I let it go, I will be a wimp.  He doesn't deserve to have a good time after what he's done.  If I let go, he will win.'   I didn't bother to ask myself what I would lose by holding on to my anger -- I only figured that if he didn't love me, the least he could do was suffer. So I said, "Forget it. It's a terrible idea," and ruined the evening for us both.

http://www.icontact-archive.com/c3OLCYAnoiYUTHdeD_YooFXc4aK4rzi0?w=4 

Why Mediate?

Why Mediate?

I usually begin mediation sessions by asking a couple why they are coming to mediation.  This helps people to remember what kind of process and outcome they are hoping for - as well as lets me know how much they know about the process.

I met with a new couple last week, and when I asked them this question - I was blown away by their answers!  In 5 minutes, they described the most idealistic mediation process, and highlighted (what I see as) the benefits of mediation.  They said:

• they want to stay amicable
• mediation is less costly
• mediation would allow them to maintain good communication
• makes sense because they have a son
• not a lot of contentious issues between them - why enter a process which might create conflict?
• avoid a war-like session
• get guidance and counsel from neutral, objective persons
• won't waste money
• more antiseptic - won't create big wounds
• more transparent - by starting discussions in the room together, they would explore information together, and decide together

So beautiful!

anger & mediation

anger & mediation

Anger is a normal feeling to have during a divorce. In fact, if you didn’t feel angry there would probably be something very wrong. Usually, one person has been unhappy for a period of time preceding the divorce, and was angry during this time. When that person tells the other that he or she has decided to leave the marriage, the other is in shock and has to deal with lots of emotions – sorrow, fear and certainly anger.

Whether you are the angry one or are dealing with an angry (ex) spouse, it's never easy. Anger often builds up without your knowing it – and if you are not aware of feeling angry, the anger will cause you (or your spouse) to lash out.

Anger can be expressed in mediation and in fact, it is a valuable tool for a mediator to use to not only resolve the divorce, but also to help shape a better divorce agreement. In mediation anger is a clue that there is an important piece of information which has not yet been expressed, and which must be explored and understood. Anger tells me that someone has important needs which are not being met. When someone is angry I want to hear how they are feeling and I want to understand why they are angry.In mediation, anger gives us a key to use to shape a divorce agreement.

If you could resolve all of these problems yourselves, you probably wouldn’t be getting divorced. All couples have issues which feel overwhelming to one or both of you – which feel, as if they cannot be resolved – but that is not a fact, it is how you feel. Hopefully, you are coming to mediation to help this resolution come sooner, rather than later.

I have seen people really transformed by the mediation process from the time when they first separate, when they are full of fear and don’t know what their future will look like – and a year or so later, when all of the issues have been worked out and they have learned that they can survive and develop a new, full and satisfying life independent of their former spouse.

If the feelings are too painful, I will offer people the choice not to speak to each other directly. If someone is very angry, they may prefer to speak to me rather than to their spouse. We may need to take a break from mediation – sometimes for a few weeks – until the person starts to work through the anger and feel better. I may have some separate meetings with the angry person to help them explore their options and understand what is at the core of the anger – usually as part of a joint session in which I would also meet with the spouse to get his or her input on how to meet the needs of the angry person so that we can move through and work with the anger.

But when we use anger as a tool, it can fuel movement in mediation. I recently mediated a divorce where the husband, Bill* expressed a lot of anger during our first mediation session. He did not want to pay alimony (which in NY state is called maintenance), and he was furious that his wife, Cathy was requesting it. As we began to explore this issue, Cathy spoke about why she felt she was entitled to alimony – she said that she’d given up her career to take care of their children, and this was a joint decision they made when they had their first child. But this information did not ease his anger.

I asked Bill to tell us more about what he was feeling, and why he felt so strongly that he shouldn’t have to pay maintenance. When I assured him that Cathy would listen and not interrupt, began to talk eloquently about how difficult this period of time had been for him – how he was living in a small apartment while his wife and children were in their spacious house – how he felt he didn’t have money to go out to dinner or go to a movie, and how he was cooped up and alone in this small apartment while she was in their beautiful home with the children.

Bill’s anger helped him to express some important needs – and needs that he had not before expressed. He felt that financially, things were very tight. He felt under a lot of pressure to be the breadwinner. He felt that Cathy didn’t understand what he was going through. He felt that he didn’t see his children enough.

Cathy was able to hear all of this during our mediation session. She responded by talking about the financial pressures she felt, too. She couldn’t buy new shoes for the children or for herself, nor could she get her hair colored. Cathy was sympathetic to her husband and was even having a similar experience.

Cathy had planned to go back to work, but after listening to Bill, she said that she realized she needed to try to find a job immediately. She said it was not at all trying to keep the children from their father, and offered to alter the schedule anytime he could get off work early so that he could spend more time with the children.

When I helped Cathy to listen to Bill, and Bill felt heard by her, his anger began to dissipate. He acknowledged what a wonderful mother she had been to their children, and how glad he was that she’d been able to be home with the children until now, and was even able to realize that he felt sad that she wasn’t going to continue to be home with the children.

This family was able to resolve their conflict over alimony and the anger was a useful tool that helped us to accomplish this resolution. Once Cathy began to plan to go back to work, Bill relaxed about the issue of alimony.Because they were both having the same experience about money, the discussion shifted. Instead of the problem being whether Cathy would take money from Bill, we instead confronted a shared problem – how to have more money in the family?

I told the couple about tax implications – money paid for child support is not deductible, but money paid for maintenance IS deductible. Suddenly, Bill’s eyes lit up. He realized that if he paid alimony to Cathy, and she used it to run the household, they would both end up in lower tax brackets, thereby resulting in a net tax savings.

We ended the session talking about how much and how long he should pay Cathy maintenance, instead of whether he would give it to her.

Sometimes anger cannot be so easily resolved. Many fights are caused by disappointed expectations. But no one gets married expecting to divorce – disappointed expectations are painful to swallow – but are to be expected during a divorce.

If you feel overwhelmed by the feelings of your divorce, do not be afraid to seek help. Get some additional support in your life – consider seeing a therapist for a period of time. The more support you get, the faster you will get through this and come out the other side. You WILL find your way through all of these difficult changes. Someday you will look back on this and find that there are ways that it made you stronger.

Seeing People Change

Seeing People Change

Probably the most important piece - in order to mediate - is to have two people who want to come through the big picture OK. Neither is out to destroy the other.

I had a couple come into my office last week who I could tell HATED each other. He works really long hours, and she is furious and has felt completely abandoned by him for years.

She has (to some extent in response) been over-spending, especially in these last couple of years, since they separated. He makes a lot of money - but they have a lot of credit card debt (which maybe they shouldn't have to have at their income level.) He is furious with her about that.

But at the same time, they both love their kids, and so they found the motivation to come to mediation, in order to get their divorce settled - and when the negotiations are over, some of the tension may dissipate - and in order to try to make things go as smoothly for the kids as possible.

So - the wife (I'll call her Elise) said, "I am thinking of selling our apartment & buying a house with a tenant, in a cheaper neighborhood. Then we would have more room, and lower costs. But I can't afford to buy a house unless I have all of the equity in the apartment, to work with."

At first the husband (I'll call him Dan) said, "No way I am giving you all the equity in the apartment. There is a lot there, and it's mine, I want it."

But within 5 minutes he said, "You know my children will never need a home. Since they live with you - if you want to move to a house, and you need the money, fine, we can continue to have joint ownership of the house, or I'll give you the money."

It was amazing to see the switch - to see him go from "no way," to "sure." and it was because he could remember his bigger goal - to make sure the kids are OK. And in this case - the hours he works - 7 days/week, for weeks at a time - he knows that the mom is the #1 person for the kids, they live with her. So - though he hates her as his ex-wife - he loves her as the mother of his children.

Opportunity for Future Conflicts?

Should they continue as joint-owners of a home? What I would worry about is the possibility for ongoing active conflict after the divorce, which is the one thing that the experts agree is the worst thing for the children. If they continue to own the house, will he be secretly mad at her, resentful, because he didn't get his equity out, and he can't buy a house? What about if they need a new roof or boiler, how will they pay for that? We would have to work out all the details, so that these things are not opportunity for future conflicts, because the children, who always feel guilty when their parents fight (whether divorced or not!) may feel that the ongoing contention - is because of them.