This was not a planned blog post, so it doesn’t have the same length or heft as the previous posts or the posts to follow, but I think it is so important that I am going to call it out here out of order.

I was involved in a case very briefly in the last month in which my client comported himself with a certain grace that I have rarely seen before. It was a tough negotiation with a worthy adversary, but someone he ultimately loved – both in the past and now. There was a lot at stake in the dissolution and the parties had addressed many of the more surface issues, but had not gone deeper into some of the more arcane areas of the family law. I told him as I read over his agreement that I am a professional worrier and as a result, I like to draft agreements that acknowledge boogymen in the closet rather than allowing them to sit there unchecked.

What I mean by that is that I had recently litigated two cases in front of the same judge that were more than 5 years post-judgment (one was 10 years post-judgment). In both cases, the parties had a reasonably large estate and in both cases the parties were relatively sophisticated actors who had thought they could handle their divorce on their own with the assistance of a Legal Document Assistant. [Side note: I am a huge fan of Legal Document Assistants. I think they provide an invaluable service to people who do not have enough money to hire lawyers. I work with many of them in my town and I refer people to them who cannot afford to hire me or do not need to hire me. That said, and I could go on singing their praises for another 3 paragraphs, they are not built to handle difficult divorces or divorces with larger amounts of assets. Here’s why:]. In my two recent cases litigating over 5-10 year old divorce judgments, both of the high earners engaged a well-known but awful LDA in our community. He drafted a Marital Settlement Agreement for each of them, which, by the way, a LDA should never do because a Marital Settlement Agreement is the practice of law. In each case, he missed key points, when I say “key points,” I mean, perhaps the most important points in the entire marital estate. 5 years later for one party and 10 years later for the other, these cases sprang back to life. Each client spent thousands – actually each spent tens of thousands of dollars litigating over issues that they believed were handled by their divorce judgments. They should have been handled in their divorce judgments. There was no excuse for not handling these issues in their divorce judgments.

The problem came when our judge – who will 100 times out of 100 say the same thing: “I am going to look at the four corners of the Marital Settlement Agreement” – decided to look at the four corners of the Marital Settlement Agreement to determine the rights and obligations of the parties. In one case, the parties agreed that Husband would pay for Wife’s nursing school in lieu of litigation and in lieu of her taking one-half of his very sizable pension. In the other case, the parties agreed that Husband would buy Wife out of the family business based on terms that were not written into the agreement. In both cases, this LDA did not include these key terms in the original judgment. Husband 1 did pay for Wife’s nursing school. Husband 2 paid hundreds of thousands of dollars for the business (which is wildly successful). We litigated for years over these issues. Each case resulted in some sort of settlement, but I simply could not get around the four corners of the agreement, even though I showed performance on on the agreement.

Our judge was not impressed. The thing he was least impressed about (he told me in the privacy of his chambers) was that the parties had assets and income to pay lawyers to do things correctly and they thought they could save a few dollars by hiring someone who was not a lawyer. He said they had to live with that decision and all its repercussions.

So, when this new client came in and was using a LDA but wanted me to double check what the LDA had written, I told him the cautionary tales of these two other clients. I told him that I worried that some enterprising younger divorce lawyer would view this as a money making opportunity and in 3 years or 5 years would bring this case back to life. I said, “you can take a risk that it will never happen but you should be informed that it could. The risk decision is yours.”

Very smartly, he changed the agreement to cover the things that I had suggested to him. But then he did something else that really impressed me and he gave me his reasons for doing it.

He offered to pay for something for his ex-wife. He did not need to do that. A court would not have ordered him to do that. But he did it anyway.

He sent me an email that summarized the 2 Rules that I mentioned in the title of this blog entry:

1. He said, “Jude, you told me that paying a little can save a lot.” That is true. If you take nothing away from this entire blog but the understanding that paying a little can save you a lot, please internalize that.
2. He said that his friend of many years told him, “Treat her with loving kindness.” While this may sound like a crazy idea in the throes of a divorce, I cannot urge it enough. Treating your spouse with loving kindness makes the divorce about you and not about her or him. It’s how you comport yourself. It’s about the story you will be able to tell later. It’s about your children’s story (even if they never know). This is the path to a calm and rational divorce. It is also most likely the path to Enlightenment, but I would not know because I am not Enlightened (yet?). Be good to yourself. Be good to your ex. Never give in on outlandish demands, but always step back and ask yourself how you can be good. I promise you that it will come back to you in spades over the long term.

One of the reasons treating someone with loving kindness comes back to you in spades is because divorce is by definition an emotional negotiation (or litigation). That means that people, no matter what they agree to, have strong feelings about what they agreed to. People who agree to things with bitterness and anger tend to feel that they “got screwed” or “taken advantage of” or some other variation on that theme. They are never happy with the outcome of the divorce agreement. They stay bitter about the things that come after the divorce decree – not having enough money or time or contact with the kids or not getting the family dog. These people are dangerous. I’m not saying they are physically dangerous (although please if you feel threatened, call law enforcement). They are dangerous in the sense that they are the ones who go back to the lawyer’s office three or four years later and say “I got screwed in my divorce; can you look this over?”

Most lawyers do not know how to crack open an agreement and a judgment, but there are some of us who view doing so as a puzzle to be solved. We think: “this is interesting. What tools are available to me to break this thing open again?” We start running through a laundry list of ways that we have attacked a judgment in the past and ways we know have worked. The problem with an “interesting” case is that there are a class of excellent lawyers who will take such a case because they like the challenge. I am typically one of those lawyers. I want to be challenged by my work and I pride myself on taking difficult and otherwise challenging cases. That means I like to rehab a parent who has agreed to some terrible timeshare with the kids or is overpaying support or is waiting for an equalization payment for too long. I tell people that these types of cases are expensive, but that they are battles I am willing to fight because of my inherent sense of justice and my love of a good puzzle. There is more strategy involved in a case where you back is against the wall and the gains are much more palpable when you start with a father who has 6 hours of visitation in a week. If you move that to alternate weekends plus 6 hours in a week, you’ve increased the timeshare 800%. If you move a parent from 5 nights out of 14 to 7 nights out of 14, you’ve increased the timeshare 14%. I am human and I like to see progress not only for myself but for my clients. Everyone is happy when we make progress toward our goals.

Back to the 2 rules: the angry, “I got screwed” party to a divorce agreement talks about it constantly with their friends. Their friends talk about their experiences. Someone is usually happy with their experience. They ask:

Friend 1: “why are you happy? Divorce sucks. Everyone gets screwed.”

Friend 2: “Well, I had Jude. He got me what I wanted and he kept the stress out of my life.”

Friend 1: “Impossible.”

Friend 2: “Call him and see for yourself.”

They step into my office saying “Friend 2 told me to call you. No one can help me. I got screwed.” Then all of the above – I take the case to crack it open and figure out ways to get my new client what she wants.

But there is a lesson in there. You know who is not calling me? Friend 2. Friend 2 is happy with the outcome of their divorce. They are relieved it is over, to be sure, but they can live with the outcome. They were a part of the negotiation that led to the outcome. We fought hard to get what they wanted, which we usually always get, so long as it is within the range of normal. They can live with the outcome.

Those people NEVER ever call me back for more work. They are not looking for ways to crack open the agreement they made and they are happy with. Winning in divorce is counter-intuitive. It means getting what you want while making your spouse think they won the divorce. How do you do that?

1. Give a little to get a lot. Smart parties to a divorce know that making a $5,000 payment to your spouse’s attorney’s fees to save $20,000 in fees on their own side is a good bet. Giving up the travel trailer (which you don’t have to store or maintain), gladly handing over the gun collection, paying a few dollars more in child or spousal support, are all the types of little things that cause your spouse to think she won. My client once told me, “you got me 50-50 with my son, no child support and I got to keep my pension. All the guys at work want your card.” His wife got 50-50, got to keep her business and got to keep the house. Who won? Both of them won. No one ever came back to try to modify the divorce judgment.That speaks to my basic fourth rule of property – always give the thing to the person who values it the most. Those people are happy. Happy people don’t try to fight you the rest of your life.
2. Loving kindness. There are many definitions of loving kindness and mine might not be the same as yours. At some level though, we all know what this means. It has an almost Biblical connotation to it. Be Jesus-like or be Buddha-like, it says. This is not a blog about religion, but anyone who can think regardless of religion (or not) can know what we mean. We mean, turn the other cheek. Step back from the emotion and remember that the other person, who you know better than anyone, is going through all of their own emotions. Remember that it’s about you and the story you will tell about your divorce. If you comport yourself with dignity and treat your spouse with loving kindness you will be happy/content with the outcome, whatever it is. If you are happy and content with the outcome, there’s a great chance your spouse will be as well. Happy people don’t go back to court.

I feel compelled to restate something I said above. Never ever give in on the things that you cannot live without. Just because I said “pay a little” or used the term “loving kindness” does not mean that you should ever give up the things that matter most to you. If you do, you will not be happy with the outcome and then it will eat away at you. If you are in the range of normal in your expectations and your spouse will not give you what you most want, and you’ve tried giving a little to see if you can get it, and you’ve tried to be kind to your ex, then you have to litigate because any agreement will make you miserable. You have to litigate in that circumstance. I think that circumstance is exceedingly rare if anyone involved in the case is reasonable, but I also want to make clear that my advice is never to give in on the issues that are most important to you. You have to make them take that from you because an agreement to something that you cannot live with is almost a guarantee that you will be sitting in my (or some other lawyer who likes a challenge) office in three years trying to crack open your judgment.

My experience is that people are generally satisfied when they make an agreement that gets them the things that matter most to them or when they get an order from a judge, so long as they have been heard. We are used to asking deciders for things and so long as they hear us out, we can live with their decision. This is true in Court as well.

So, the goal is an agreement that gets you the things you cannot live without. Use Rules 1 and 2 (pay a little to get a lot; be kind) to try to get that agreement. If you cannot get there by using those rules, or any other legal tactic, then you have no choice but to go to Court. Never ever ever sign an agreement that contains terms you cannot live with, and never let your spouse sign an agreement with terms they cannot live with. Make it reasonable and fair as quickly as you can. And don’t have your later story that you “got screwed” in the divorce.