I read recently that the average Los Angeles or San Francisco divorce costs $57,000 on each side. My firm’s average divorce cost in my city (not the expanded region in which I consult) runs about $21,000 on my side plus probably the same on the other side over the last few years. San Luis Obispo and Santa Barbara Divorces are running double that amount. Any case that I have worked on in Los Angeles or San Francisco areas have approached $100,000, which is because I only handle high asset cases or protracted custody fights in those jurisdictions.
In every single case (I am wracking my brain to think of one that does not fit), I have known the outcome in the first one-hour consultation with my client, within what I call the “Range of Normal” or “Expected Outcomes.” No matter how much we spent or how we fought the case out, I could put my thumb on the scale to tip it our direction within that Range of Normal, but never outside of that Range of Normal. I’ve inherited cases where my client is getting pummeled by opposing counsel and the judge and tipped it back into our favor – usually through a series of strategic moves that take small advantages and exploit either desires by the other party or weaknesses we start to see through their actions – but always, always, always within the Range of Normal.
I have developed what I call the Range of Normal through two types of analysis and hypothesis. I believe, as I will repeatedly touch upon throughout this blog, that 1) the law is driven by reasonability (which means for right now: what the average person would believe to be “A” correct action – Note that I did not say “THE” correct action. The reason why the Range of Normal is a range is that there are a number of possible outcomes within that range that a reasonable finder of fact/decider could determine to be reasonable.); and 2) Judges tend to believe that the outcome in a divorce case should be fair (which means for right now: something that looks more or less equal). But, there is a third intangible factor, which is that Judges are human and they are swayed by the emotional sides of a case as well, which is why positioning yourself as a reasonable person, behaving well in court, dressing nicely, being respectful and assertively stating your case is important. Never try to teach the Judge why you are smarter than her, demonstrate aggressive behavior or push back too aggressively – that should all be self-evident, but it is surprisingly not. You don’t have to wear a suit to court, but if your work uniform gets dirty on the job, wear the cleanest version you have. If you aren’t confident talking off the cuff to the Court, write down what you want to say and read it slowly – there is a court reporter writing everything down, so read slowly.
Since divorces in most states should divide the marital property equally between spouses (or something that looks pretty equal that is called “equitable”), trying to decipher what is marital property and what is not is perhaps the major issue (there is an easy answer: it is everything you got during the marriage that was not an inheritance or gift).
In my consultations with new clients, I spend about 15 minutes just letting them vent about what’s been happening, then I systematically – but also gently and with true compassion for them – ask them about three categories:
1) CHILDREN: what are the ages of their children? Upon which parent is the burden of raising them the heaviest? For older children, what would they say if you asked them which parent they were closest to? For late teenagers, what would they like to do?;
2) INCOME: what are the incomes of the parties? Do they have a business or W2 income? How long was the marriage? Did anyone give up a career to raise children?; and
3) STUFF: What property do they own? How did they get it? Did they have any property before marriage or did they inherit any property?
Those three categories cover almost everything. With rare exceptions, having all of that information I can discern how the entire case will work out within that Range of Normal, which generally means somewhere between 45% and 55% of all of the items will end up with the person sitting across the table from me, with x amount of support and y% timeshare with the children. I will also ask in that first meeting, what my client wants as their one-half of the property, how much they can pay in support/or need to live and how much they think is reasonable to share the children – anecdotally, I often ask how they would divide the stuff and the children and most of the time, not surprisingly, they are within the Range of Normal themselves. Then we drive everything in the case toward their preferred outcomes. Sometimes a party will end up with 47% of the assets but they got the assets that mattered most to them and they feel like they won – I assert that they did “win the divorce” if they got the property that mattered to them most.
So, once I have a pretty good handle on the case, the question is, why does it still cost between $20,000 and $60,000 afterward? The reasons, from my anecdotal and experienced perspective, are twofold: 1) people think it should take longer and cost more than it should and 2) lawyers get overly enamored with the law and fight over every single small and esoteric issue far beyond what virtually every client cares about.
1) People think it should take longer and cost more.
So they pay it. They gear up for big battles. They allow their emotions to dictate their actions. And they do not listen to lawyers who genuinely try to get cases resolved efficiently and quickly. How many couples have spent $50,000-$100,000 just fighting over 12-24 hours per week of visitation with minor children? How many are driven by a fear-based mentality that their spouse told them they are going to “take them to the cleaners” and, no matter how many times I have told them that the Family Law just does not allow this to happen without a terrible agreement that I would never let them sign, they continue to litigate out of fear?
NOTE*** Throughout this blog, I use examples from my own practice. I cut the examples to their most bare factual issues and then modify them enough that if you went to the courthouse to get all of the pleadings in all of my cases, you would not likely be able to distinguish which case I refer to. However, to dispel any worries about attorney-client privilege, all examples I use are in the public domain. If there is an attorney-client privilege issue with any example, I will have stripped the case of any identifying information so there is no way for you to distinguish.
Literally, just as I am typing this have been text messaging with an engineer-client who is based out of state. He has been trying to negotiate with his soon-to-be ex-wife about child support. Child support, as I promise to discuss in detail in a later blog post (actually a several part Blog post), is, in almost every jurisdiction, not difficult to calculate. It is mostly done by formula. There are input variables and we do some massaging of these variables to tip the balance one direction or another, but for the most part, the large portion of child support payments is based on the incomes of the parties and the timeshare with the children. Since most parties are W-2 wage earners and we can calculate the timeshare readily, support amounts mostly follow the formula.
My client has been running every possible set of variables to get a particular child support number in a negotiation. I have told him repeatedly that no matter how many different ways he can run the numbers through the computer program called in California, “Dissomaster”, to get a child support figure, the low end is $750 per month and the high end is $1,100 per month, with the most likely outcome approximately $850 ($848 per month). Being an engineer, he wants to have an “objective” outcome – a number he can count on. I tell him there is no number to count on if we ask a judge because, if to get the low-end, we need win our interpretation of every variable (count overtime hours for the Wife, count her 19-year-old daughter from a previous marriage as a federal exemption, do not count her future health insurance payments because we do not yet know what they will be, count only my client’s mortgage interest deduction from the home he lives in and not depreciation from his rental property), which is unlikely at trial. If we get the high-end, she wins each of these variables. But the spread is not that great between $750 and $1,100 for a man who earns well over $100,000 per year – it’s not nothing, but to spend $25,000 going to trial over a $3,500 per year difference in support for a child who only has 4 more years of minority, makes no sense. He sent me a text message this morning to tell me that he had “checked” my numbers with a free online program and found that the most likely number was $876 per month. My number is $848. Are we going to have a $25,000 trial over $28 per month? I hope not [We didn’t – and we settled at $775].
2. Lawyers get enamored with the law and fight over things clients don’t care about.
I have taken to explaining during my new client consultations that we can draft up an agreement and resolve the entire case for $5,000 or so with a complete agreement and a judgment of dissolution, no problem, all it takes is for the other party to participate. I tell them that a couple of years ago we did a divorce for a couple with $7 million in a widely diversified asset portfolio for $3,500. There weren’t any minor children, so it was easier, but both parties said, “it’s divide by two, right?” The math was easy $3.5 million to each side. They took turns picking what they wanted, but it was actually pretty simple because, as I often say: if I want to borrow my wife’s Prius, I have to ask her and if she wants to borrow my truck, she tells me she’s borrowing it. But at the end of the day, we know the truck is mine and the Prius is hers, even though we both pay for both. That was true in the $7 million case too. Wife wanted the commercial building downtown because she wanted the income it produced (Husband liked that for spousal support purposes), and Husband wanted the 12 acres near the beach because he liked having an ocean view and wanted to have a gentleman’s farm. Wife liked living in the city and had always kept an apartment in the building unrented so she could stay in it when she felt like it. From there we started dividing investment accounts. Husband got his Jaguar and Wife got her Suburban, etc.
Sure, we could have litigated everything to the penny. We could have litigated reimbursements and credits, valuations of the vehicles and real property, and spent hours analyzing income potential for the Wife, who was under-earning for her Master’s degree (but it was 22 years since she had last used it for anything). The parties were not interested in those things. They determined that they could easily have spent $100,000 to potentially make $100,000 on their side of the balance sheet. and spent months, if not years, fighting each other in court. Making the smart choice, they realized they would both be better off keeping the fighting to a minimum and splitting that $100,000 between them. It’s easier, of course, when there is plenty for each party, but maybe the calculation should be all the more present when there are fewer assets to divide. This is a key point – do not let your lawyer talk you into litigating things you’ve never heard of unless they can truly show you the cost-benefit calculation works in your favor.
3. Being Rational Saves You Money, Pain and Heartache
Always approach your divorce with a rational mindset. By “rational” I mean making a basic calculation about what the assets are, how each of you is going to get half(ish) and what you hope to achieve. Do not let your lawyer, if you have one, or yourself, if you don’t, go off the course you have set for yourself. There will be rare times when you find that you are playing with house money – when you are so far out ahead that you can afford to take a strong position or play for a chance on a reimbursement claim – but these times are few and far in between. The rational calculus looks at the major assets and recognizes that the Court could simply liquidate all of them into a pile of money and divide it one dollar for one dollar until it’s all been distributed. If you know that, for example, a house has a value that exceeds fair market value because you would have sold it already (or more likely, because there is a cost to selling it and qualifying for a loan and buying a new one), or that a retirement has a value because markets tend to go up and the miracle of compound interest/growth, then you know how you value your own assets.
Make a list of all of the assets and rank them by order of importance to you. If you know that you do not want to stay in the house, then figure out if your spouse wants it. If not, list it for sale right away. If you want your pension more than anything and you know your spouse wants the house, start driving toward an agreement that gives you the pension and your spouse the house. Sometimes these are asymmetrical assets – one is worth more than the other. If you know your pension is worth more than the house, negotiate for other things that will create more equity, use emotional arguments to benefit your cause, or work toward other solutions that may give you what you want. I believe firmly in emotional arguments in a divorce – do not extort, but I think it’s perfectly reasonable to say “I want my pension because I broke my back earning it.” Or “I want the house because I spent years designing my dream outdoor kitchen and pool and you were always working.” These are all emotional assets in a divorce. Never threaten to work at Taco bell or to hide your money offshore or to expose an affair in order to get what you want – that’s just weak. When it’s over you want to be able to be proud of yourself and your conduct as well as happy with the assets you got.
Your negotiations should focus on getting you what you came for. If you or your lawyer starts to get off track, correct course. You should never fight over something you do not care about. You should also do the math on the support calculations. Do not fight over $100 with a 5-year support order. Put your $6,000 in the bank instead of paying your lawyer and use it to make that support payment for 60 months.
Always stay focused on your goals and never stray from those. Do not allow a lawyer to push you toward fights over things that you have never heard of. If you haven’t heard of it, you probably don’t want to spend a year’s tuition at a UC school to fight over it. But, if you are willing to fight over it, then ask your lawyer to explain it to you so that you understand why you are fighting for something you never knew existed (Watts/Epstein credits or Moore/Marsden credits, for example) and show you why it makes rational sense to do so. What are my expected outcomes? What are my expected costs? If expected outcomes are not substantially more than expected costs (your lawyer will almost assuredly charge you what he says he will, but you may not achieve victory on a particular issue no matter how smart your lawyer, how good your facts and how impressive a person you are – judges are fickle and decide things the way they want to within the bounds of the law – sometimes it’s no one’s fault, the judge just didn’t rule your way). Get serious about the likelihood of winning the issue and the cost of winning it. Then, ask yourself how much blood, sweat, and heartache you want to shed over it.
Never ever get caught up in winning for its own sake. Chances are, eventually your spouse will see the children, even if they are using methamphetamines and in and out of jail or got arrested for a third DUI. The policy of the State of California is that each parent has continuing care and contact with the children, balanced against the children’s safety. A no visitation order is difficult to get and almost impossible to keep so long as the parent is not a danger to the children. Be rational about fighting for no visitation orders that last a long time. Offer supervised visitation. Pick a relative that you can stand and let that person be the supervisor. A great approach is to offer to have your spouse’s mother do the supervision. Why? You look like a hero because many judges are grandparents and a flaky parent will eventually bail out of the picture, but if you let grandma see the kids she will love you forever and the judge will think you are a standup person (thereby giving you more custody of your kids).
By the same token, do not keep blasting away at a spouse who will never be able to pay you what you win. This is true of both property and support awards. Good lawyers feel for a “sweet spot” in a support award that the other parent will pay. You want to get paid. If the other parent cannot afford to make the payment, often times, they will pay $0 rather than make a partial payment. Then they go underground. Then you never get your money. Negotiate to a number that you can live with…and collect. This is also true if you are the payor. Negotiate over the child support number. Explain why the guideline is too much and ask for a smaller number. Agree to pay all unreimbursed medical costs, offer to buy the basketball shoes or soccer cleats and school supplies. This is a negotiation in the “shadow of the law.” If you go to Court, the judge will simply use the Dissomaster and give you a number. If you negotiate, you can get a lower number by asking for what you want.
4. The Family Law is Enigmatic
Family law is enigmatic. On the one hand, there are a series of guiding legal principles and code sections that govern the majority of cases. Knowing those few basic rules, most lawyers can practice in the family court. But beyond those few basic rules, the Family Code and the caselaw interpreting it, gets fractured and complex. As I have gone deeper into the subject, as is my custom, I began reading the cases and the code sections. I started to understand that property rules involve highly complex accounting, that pensions require precise language for division, that child and spousal support numbers can be massaged, and that reimbursements and pro tanto property interests factor heavily in divorce cases.
I also learned that judges are enigmatic. There is are two old sayings that bear repeating in this context.
First, “the law is what the judge ate for breakfast.” This saying derives from the basic fact that judges will make their decisions partially on their whims. One judge favors shared custody but higher support payments, another doesn’t care a whit about custody parity but gets annoyed at support obligations, another rules based on his “feelings” about right and wrong or even through a thinly-veiled evangelical Christian leaning. Thus, there is variation in rulings in any group of judges.
The quote about what a judge ate for breakfast demonstrates that there unpredictability about how any one individual judge will rule. This gives lawyers conniption fits. When I write a well-researched, completely documented brief, I know that I may lose one of one or two ways. If I lose one of those ways, I understand that the facts in a divorce case drive outcome – I might win and I might lose a particular issue – this is why I could not tell my engineer client that child support would definitely be $750 or $1,100 or something in between. When I lose in a way that has no rational relationship to one of those ways that I identified in my briefing, I know that the judge has ruled based on what he or she ate for breakfast. Those are the days I find myself walking on the beach alone questioning my life’s choices.
The rest of the blog is peppered with stories about cases that I have worked on and ways in which judicial temperament matters to judicial decision-making. I am open about cases that I have won and lost – I have not tried to pretend that I have a perfect batting average. The good news is that in family law, the goal is to get to 50%, so when you lose an issue, you rarely lose the whole thing, but I still know when I have butted heads with a judge over a legal issue and lost and I didn’t like it one bit. This book does not cover appeals – suffice it to say, when I have believed that a judge was truly out of bounds, I have taken him or her up on appeal. As of this writing, I have never lost an appeal. That usually tells me that I was right to be angry with a judicial decision and gives me confidence that when I have been sure a judge is wrong about an issue, I am probably right about it.
The second old saying is: “A good lawyer knows the law. A great lawyer knows the judge.” The cynical part of me understands that saying to mean “a great lawyer plays golf with, goes to church with, is on Rotary with or socializes with the judge.” I do not, as a rule socialize with my judges. I have worked very hard to build a reputation for honesty and aggressive representation with the court. I call a judge out when I feel they are wrong and I advocate with everything I have in me.
However, I draw the line at disrespect – I refuse to disrespect a judge. Why? I think it is unbecoming of a lawyer to disrespect a Judge number one, and number two, my allegiance is to the judicial system and not to any one judge. I am not going to be a part of undermining anyone’s faith in the legal system by undermining a judge. I have had to accuse judges of bias in the past, but I have always done it in chambers with no court reporter and no citizens sitting in the gallery to watch. Let that be one of the first lessons of this blog.
Do not, under any circumstances, disrespect the Court. Not only will it do nothing for you in terms of winning your case (likely the opposite), it dishonors the legal system in general.
Anyway, back to the second saying. A great lawyer does not “know” the judge, but a great lawyer “understands” the judge. That means, you can stand in and represent yourself, but if you do, I encourage you to go to court on a day when your case is not going to be called and listen and learn from the judge. Learn how they respond to challenges. Watch the lawyers. Listen to the amount of deference lawyers give the judge and the amount of pushback they give the judge.
My experience is that, in the family law, virtually all judges will give virtually all people an opportunity to speak. Speak. Do not clam up. If you have to write it out ahead of time and read it, that is fine. Apologize to the court, tell the judge that you get nervous and out of respect for the Court’s time, you want to read your statement so that it is clear and factual and to make sure you do not forget everything. Remember that there is a person in the front of the courtroom writing everything down, so go slowly. Look up and make eye contact. Focus on what you’ve learned from the judge about the way they rule. Be polite and say thank you to the Court for listening to you. Be polite to clerks, court reporters and bailiffs. Open the door and hold it open for others coming into and out of the courtroom. You don’t have to wear a suit, but dress appropriately. This is a place for respect, but it is also a place for you to say everything that you are there to say. Never use the word “lie” (use the word “misrepresentation” instead). Never call names. Always address the Court and never the other lawyer or party. This is all beyond the scope of this blog entry – I have every intention of writing a second book about Better Divorce: Litigation Tips and Techniques for the Non-Lawyer, but there is a long way to go before I can get that done, so please, keep the above in mind.
I have endeavored with this blog to do a couple of things. The main goal is to help you stay out of court by teaching you the law so that you can negotiate from a position of strength. Part I of the blog comes from my book in progress Better Divorce: A Handbook for Surviving the Worst Time in Your Life: it gives you the 50,000 foot overview of the Family Law system. It teaches you about the Range of Normal, the Rule of Reasonability and the Three Property Rules. This is done to conceptually help you understand the law so that you can negotiate from a position of strength and not from a position of fear. I believe that every family law case can and should be settled through negotiation.
I write more about my basic disdain for mediation and collaborative law in the family law context later, but why I believe that through targeted negotiation with a basic understanding of the law, you can and should settle your case. If you buy briefs on this site and eventually buy the book for $33 and settle your divorce case fairly to you, your soon-to-be ex and your children, you save $50,000 or more. If you don’t, the book doesn’t even cost the equivalent of a 6-minute phone call to the lawyer you hire to litigate for you.
I’m using this blog to finish the book, so, for now, I hope I can teach you some things about how to handle your divorce for free. And, I hope you will buy the briefs as I begin to post them, send me comments and questions and/or hire me for advice and counsel when you need it.
5. Manage Your Lawyer (and Your Bill) By Asking Questions
Finally, going all the way back to the Title of this blog entry. Manage your lawyer by asking questions. Ask why? what’s in it for me? what are my chances of winning that issue? How much will it cost? Go back to your list of assets and ask whether you are working toward the assets you want or spending money needlessly. It is perfectly fine to fight for Moore/Marsden interest in a separate property home, in fact, that might be your whole case, but just make sure that you know why you are doing it, what it will cost you to do it, and what your likelihood of winning the issue is. In my experience, the more expensive the lawyer, the more bullshit the arguments are. I get all kinds of shitty letters from famous and expensive lawyers taking outlandish positions that they can never ever win at trial. They do not scare me because I know the law. I tell my clients not to be afraid of these letters and these claims. And I always tell them that the lawyer is asking for these things, hyping his client all up on winning them, when there is not even a snowball’s chance in California (much less hell) of winning.
