Preparation for the bar exam begins with two stacks of books three feet tall. My classmates with whom I studied in law school for the bar exam had those sorts of minds that can memorize 6 feet of bar review books in 6 weeks. I tried it. I have a great memory and am a great test taker. In fact, I joke that taking tests is my gift; everyone gets one gift from their DNA or their God, and mine was the gift of taking standardized tests. But memorizing that much in that short of a time wasn’t going to work for me.

I had to come up with a better way to get through the bar exam. So, I developed a theory as I, for the first time, lined up all of the legal subjects next to each other, learning or re-learning them, that the law is guided by a single principal and from that principal almost anyone can reason to the right outcome.

That principle is the Rule of Reasonability.  Reasonability has other names: “Rationality”, “Negligence” and “the Standard of Care” or “Duty of Care,” in particular. Foreshadowing a little: the Range of Normal fits in here as well. The Rule of Reasonability asks two questions: did the person subjectively think the action they took or didn’t take was reasonable? Would another person similarly situated think the action was reasonable? The law is famously littered with exceptions to general rules – in fact, some say, being a lawyer is more about knowing the exceptions than the rules. Google will give you the rules and all of their exceptions if you know which questions to ask. What I learned while studying for the bar exam and utterly failing to memorize 6 feet of examination books (while passing the test the first time through it) is that, I argue, even the exceptions are really just the Rule of Reasonability pushed a little harder. I give some hypotheticals about exceptions below to illustrate the point.

Reasonability almost matters more than anything else in the law. Since most legal rules are rules of reasonability, most of how you approach family law (or any legal issue you face) should be with reasonability as your focus. This is why I can get a Range of Normal in the first 15-20 minutes of meeting a potential new client. The family law says 50% of the marital property to each party (or an “equitable distribution” to each party[1]) and increasingly throughout the country, assuming parents are emotionally and mentally well, 50% of the custody of the children, but in no event should custody be shared unreasonably (California calls this “continuing care and contact”).  Many states are moving to a continuation of the “primary caregiver” for future custody orders, which is a sort of reasonable approach.[2]

It’s also important to keep the idea of being Reasonable in your head as you go through the process of determining how to negotiate and what you want to ask for from your spouse or the Court. This latter type of Reasonability is a state of mind, the former is the state of the law. This means: focus on being Reasonable while understanding the law seeks a reasonable outcome. You are being reasonable when you accept the Range of Normal as the most likely outcome and shoot for outcomes within that range. The law is being reasonable when it develops a Range of Normal as a framework within which you should be negotiating.

If you try to negotiate outside the Range of Normal or if your spouse tries to jam you into an agreement outside the Range of Normal, you will (or should) end up litigating.

Let me give you a few examples of reasonability as a state of the law. I will try also to give practice pointers and tips throughout the book to help you grasp the issue of reasonability as a state of mind.

Here, are a few examples that illustrate my point for you to review and see what you think (a couple from the law more generally and a couple from family law). The reason I am launching into this part of the discussion so quickly is that I develop my own rules of reasonability in this blog and the book and throughout the Better Divorce series. I believe that if you understand how the rules work on a conceptual basis, which is how I passed the Bar Exam, you can reason to the right conclusion and the right action nearly all of the time – you will be able to understand the Range of Normal outcomes and negotiate within those – not demanding more and not being willing to take less than what the Range of Normal outcomes tells you that you will get if you litigate (i.e., your BATNA – Best Alternative to a Negotiated Agreement, which comes from the negotiation Bible Getting to Yes). Ideally, you will push to get the most that you can within the Range of Normal and accept outcomes that are within that range. If both parties negotiate within the Range of Normal, they can and should always settle their case.

Therefore, it is imperative that we talk early about how the law tends to fit together, particularly because, from where a layperson or a lawyer new to family law sits, this area of law might seem confusing and complicated.

This also helps us work toward the goals of this entire series, which sets forth why I am not a big fan of mediation or collaborative law in the family law context, but I think you can and should negotiate and settle your case within the Range of Normal. You should never get taken advantage of, but you should always make a deal by figuring out what the high-end Range of Normal is and what the low-end Range of Normal is and then focus on getting what you want within that. Since mediation and collaborative law mostly work on emotional outcomes where neither party knows the law, one party may end up way outside the Range of Normal, while the other party is either forced to litigate or negotiate outside the Range of Normal – the most likely outcome in a negotiation is a midway point between opening positions, so if one person is way outside the range, the other is driven toward a midway point with outside the range positions, which tends to lead to outside the range outcomes or litigation as the BATNA. Proponents of mediation and collaborative law respond to that by saying that it does not matter whether the outcome is within or outside the Range of Normal, so long as they agree to it. I disagree strongly. I think that once a party realizes that their agreement is outside the Range of Normal, sometimes well after the divorce is final, they get angry and do not want to abide by it any longer. Good agreements are durable agreements that allow both parties to get what they want as much as possible, avoid litigation, and work together through the years to come without additional litigation.

I describe in detail in in later blog entries what mediation and collaborative law, as I understand them, are and then why I have a problem with them. What this blog (and the book) aims to do is solve a fundamental problem with mediation and collaborative law: that Parties do not know the law. I do not intend, even with a long book, to try to teach you the entire Family Code. Further, although I am a California State Bar Board of Legal Specialization Certified Family Law Specialist and a California lawyer, practicing in a community property state, I believe many of the tools and logic that I provide will cross over to non-community property states.

I remember having one of the leading tort professors in the world teaching a seminar in advanced torts tell our class that his research indicated that, no matter the legal system – in particular, he compared the American system to the European system – the results of the legal process were almost always so similar as to be indistinguishable from each other. He argued, although he did not use these exact terms, that Reasonability is the same no matter how you derive it, across cultures and languages. If that is true for very different legal systems, it is also true for different legal terminology.

The 9 states that use Community Property as the basis for dividing marital assets are: Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington and Wisconsin, and Alaska, if the parties elect. In these states, parties are assumed to equally share all income, property and debts accumulated during the course of the marriage. In theory, this means a strict 50-50 distribution of community property assets and debts – but only community property assets and debts, because separate property remains separate. The “equitable distribution” states, all others, give the judge a little more leeway, but, in the end, they go through a very similar analysis of separate and “marital” rather than “community” property and then attempt to make an equitable distribution of the marital property, which often looks like 50-50, although it does not “need” to be a 50-50 distribution. The community property states, as we will discuss, actually build equitable distribution into the statutes – the judge should divide property 50-50, but has discretion to decide which 50% to distribute to whom and always has discretion to let equitable factors determine outcomes. In other words, in 50-50 states, we use 50-50 division of community property as a default position and then give the judge the power to let equity dictate different outcomes.

Equity, by the way, is just another word for fairness. The fairest outcome is usually one-half, but I will describe ways in which the 50-50 outcome is not the fair outcome. A 50-50 outcome, viewed as an “equitable” or “fair” outcome actually starts to sound a little like Reasonability or Rationality – how would a reasonable person divide some stuff that was purchased by two people in a partnership when those two people sought to divide the stuff? California even adopts the Corporations Code regarding general partnerships as part of the Family Code. Call it community property if you want – and we will and we do – but, in practice, what we are doing is equitable division of assets and debts between two “business” partners who are dissolving their partnership and dividing the assets and debts between them.

In the end, all the discussion of differences between the systems is more or less a distinction without a (major) difference. This blog (and the book) is written with California cases and examples because I am a California lawyer and Family Law Specialist, Certified by the State Bar of California Board of Legal Specialization (they make me say all of that), so that is where the majority of my back ground knowledge comes from. The other thing is that two of the three more important states for legal rule creation – California and Texas (from which we get both very liberal and very conservative statutes from legislatures and opinions from Appellate Court judges and State Supreme Court Justices) – are community property states and one of the three – New York – is an equitable distribution state. What that tends to mean is that as the family law develops across the country, these states are influencing each other. I do not know if we will ever get to a standardized system for family law on a national basis, but this blog (and book), although using the term “community property” has a basic argument running through it that these terms really do not amount to a large difference in outcome and that, if you follow the basic principles of Reasonability, you will almost always be able to reason to the proper legal outcomes of just about any case.

Therefore, I give three examples of Reasonability in Action below to illustrate my point. Two examples are more general and the third is family law specific.

Example 1: The General Duty of Care and Special Relationships

We all owe each other a general duty of care. That means when I see you on the street, I owe you a duty not to drive my car into you, to obey basic rules of the road and to treat pedestrians with special precaution. This duty of care exists for every single relationship, from people who trespass on my land to my own beloved daughter. But what is considered as “reasonable” changes with each relationship.

So, to a trespasser, I owe a certain duty not to set traps and not to create “attractive nuisances” (i.e., ultra deep “swimming pools” from which there is no escape except drowning, like rock quarries that fill with water or “pit traps” covered with dry branches with spikes to impale unwitting walkers). For trespassers, my duty of care is below the general duty of care, but I am not permitted to create hazards they might walk into or that conditions invite them to walk into (again, a rock quarry filled with water on a hot summer day or a “pit trap” used to deter illegal hunting on my property).

To a person I invite into my home, I owe a duty to warn them of hazards – “Hey that step is a little loose” or “the water freezes there on cold nights and it gets a little slippery.” This is higher than the general duty of care – where my duty is mostly just to not put other people at risk with my actions and to take general care not to hurt others, but I don’t have to walk down the street telling people about an icy patch I slipped on a block back or to flash my high beams at cars going the other direction to warn them of a speed trap ahead.

To people I invite into my law office or the café I own with my wife, we owe a duty to affirmatively fix hazards on the property. It isn’t enough to just put up a yellow sign that says “wet floor,” we have to actually dry the floor. This is obviously higher than the duty I owe people who come to my home, even though they are invited, because I am actually expecting people (or “inviting” them, to use the legal parlance) to spend money in my establishment as opposed to a social gathering on which I am not making a profit.

Then there are special relationships – these relationships are special because we owe still even a higher duty of care. Or rather, we owe a higher duty of care because the relationship is special. It isn’t surprising at all, if you think of it that way, that spouses, parents and children, innkeepers and their guests, commercial carriers (busses, trains and planes) and their passengers, ship captains and their crews, all owe a higher duty of care to each other than the general public owes each other. We categorize special duties of care as duties owed by one who enjoys a relationship of trust and confidence with another; alternatively, you might state the special duty of care as “he or she in whom another has entrusted their life, money or love and affection owes a higher duty of care to the one who entrusted it.”

Fiduciaries also owe this higher duty of care. These special relationships are relationships of trust and confidence that have to do, specifically, with entrusting money.

Husbands and wives have both a confidential and a fiduciary relationship. This is really important; in fact, fiduciary duties and duties of trust and confidence are the most important area of development in family law over the last two decades (aside from possibly the issues relating to same sex parents and three-parent households), the area where all of the major action is in the appellate courts and the area where doing it wrong can really cost you a lot of money. We will talk about fiduciary duties throughout the blog (and book), particularly when discussing financial disclosures and the possible waste of marital assets, but I will give a description of fiduciary duties, how to comply with them, what a breach is and what punishments exist for the breaching party in later posts. But I caution you, as I noted in previous posts, against fighting over fiduciary duties unless there is a real reward at the end of the rainbow. Fiduciary duty claims are notoriously difficult to win – although winning them generally gives you a very strong leg up in the divorce, so the payoff can be high. Expect to spend a lot on fiduciary duty claims, as much as half of the potential payout. And you might plead it perfectly and still lose. That said, I will have briefs on breaches of fiduciary duties available for download. it’s definitely worth spending $100 on a motion or a Points and Authorities Memorandum to the court to see if you can win the issue, but it may not be worth spending $25,000 in attorney’s fees only to have the judge make some sort of compromise solution.

The general rule of Reasonability stated in terms of a duty that I owe another is the General Duty of Reasonable Care. I owe you a duty not to ram you with my car by driving on the wrong side of the road – generally stated as my duty not to increase your risk of something bad happening to you. Most “accident” cases are just accidents in which someone fails to live up to the General Duty of Care (they take a corner too fast in their car, they squeeze their coffee cup too tightly and spill the contents on another person, they aren’t able to stop well on their skis, etc.).

Then there are a whole host of exceptions to the General Duty of Reasonable Care. Thus, the exceptions to the General Rule of Reasonability go both directions – a reduced duty to trespassers who I might reasonably expect to come on my property whenever I create “attractive nuisances.” There are heightened duties of care that increase in steps from the General Duty of Care, based on the closeness of the relationships.

Each of these “excpetions,” if you spend a minute or two (or less) thinking about it, makes complete sense if you look at it through the lens of the Rule of Reasonability. If the General Duty is that I owe strangers I pass on the street a duty not to create hazards for them, it is completely reasonable that the care I should take in dealing with others who I know and socialize with, who I invite into my business to spend money, and who have entrusted me with their love and affection, money or life would all expect (and therefore the law requires) requires a higher level of precautionary behavior on my part.

 

Example 2. The Doctrine of Fraudulent Transfer or Bona Fide Purchaser.

When people own real estate (real property) they tend to record documents at the County Recorder’s Office. A recorded document tells the world who owns the property.

Let’s say A and B own some property together. A has recorded a Deed that says that A is an owner of the property. B has a recorded Deed that says that B is also an owner of the property.

When B sells C property subject to A’s recorded document that says he has an interest in the title to the property, if C knows or should have known about A’s claim on title when he buys it, A has an action against both B and C – against B for loss of money and C to get his property back. But if C did not know about A’s property interest when she bought the property from B, then C keeps the property and A only has an action against B to recover money/damages. The ability to make a claim on the property is entirely based on the public announcement of ownership by recording a document regarding the interest. That is why there is a title search, title report and title insurance when you purchase real property, to make sure that no one else has a claim to the property being purchased.

That’s also based on reasonability analysis. You aren’t liable for what you genuinely don’t know about, but if you know or you should have known, you are liable. “Should have known” is an interesting concept, but what it says in this case is that, if you purchase real property, you must check the recorder’s office to know whether someone else has an interest in the property you are purchasing. No one is going to make you go down to the recorder’s office and pay for a title search, but if you are C in this example, buying a property from B, you bear the risk that the title recorded by A is there. To be fair, it’s less common that someone else actually owns the property, but it is very common that you might buy property subject to a recorded easement – in fact my house is on acreage and there are two landlocked properties that have an easement for a road along the edge of my property. Before I bought the property, I learned about the easement and knew that I was buying subject to the easement, meaning, those parties would have the right to use the road on my property – having the road on the property that others can use generally reduces the value of my property, so if I know about it before I buy the property, then I can make an informed offer to purchase based on the discounted value I ascribe to the property with the easement on it. In my case, the road just skirts the edge of the property so it didn’t impact the sales price much.

In any contractual dealings we have with others, we owe them an implied duty of good faith and fair dealing. That is just another way of saying, we have to be reasonable with one another. That is, if we are going to negotiate a deal between us, we each owe each other the basic duty of good faith and fair dealing – we agree to disclose defects, disclose title problems, warranty that you are purchasing what you are paying for and warrant that the check you provide will not bounce and was not obtained from a bad source.

The Duty of Good Faith and Fair Dealing is another Rule of Reasonability with a different name, applied to an area of law – Contract and, in this case, Real Property. This pertains to divorce agreements as well, since divorce agreements or Marital Settlement Agreements, are contracts. Thus, I always caution anyone against making a fraudulent contract where you make a promise to do something in order to get what you want with no intention of actually following through on your end of the bargain.

 

Example 3. Family Law Fiduciary Duties.

One more, this time from family law. I mentioned fiduciary duties and duties of trust and confidence between spouses earlier and I said I would talk about it more throughout the blog (and book), which I will, but first let me give a small example.

Fiduciary duty, by the way, means essentially financial duty – basically a fiduciary is someone to whom you give your money to hold onto for you. They have different obligations to you than someone who doesn’t have your money.

In a divorce, the Family Code sections 720-721, 1100-1101 and 2100 and the sections immediately after it, all talk about how spouses are obligated to tell each other everything about their finances during the litigation, even if they are living separate and apart (and even if they’ve been separate for a long time). The rule is that the spouses’ finances are so tied together that they have a right to know what there is, so they know what to ask for. That means not only divulging details about your pension plan but also details about a small inheritance left to you by Uncle Ernie after you separated but before you get divorced and all the details about the 401(k) you began before you got married.

The fiduciary duties extend all the way until the last assets are divided, so don’t let the actual entry of judgment of divorce fool you as it has to many people in the past. Well, let me qualify that, after your divorce is final, you have continued fiduciary duties for whatever asset has not been divided, not all of the assets. This means if you get a raise after the divorce papers are filed but before there is a judgment of divorce, you have to tell your spouse about it. But if you already agreed to give your spouse $100,000 for their share of the equity in the home, you do not have to consult them before undertaking to put on a new roof, even though you may still owe your spouse $50,000 for their half of a stock account you haven’t yet liquidated.

Fiduciary duties between spouses are just rules of reasonability. Spouses are like business partners. They have a right to know what the partnership produced and to make sure that one partner doesn’t take all the assets that belong to the partnership without sharing them. It’s reasonable to require each spouse to share with the other, information about all the assets and then to promise not to do things with the community or marital property that would damage the other’s interest to their own benefit. In other words, you have a right to be free from your spouse’s sneaky behavior. If they are sneaky, then you can ask the Court for sanctions, usually an award of the property (or half the property and your attorney’s fees). It’s a big deal and it is increasingly common for parties to ask Courts to analyze the fiduciary duties.

The Range of Normal is Just Another Way of Talking About Reasonability.

Each of the three hypotheticals shows a way in which Reasonability finds its way into the law. That is not meant to be an exhaustive list by any means, and I do not expect to convince lawyers or law professors that we can reason to the correct legal conclusion if we just use the Rule of Reasonability in every case, with just these three examples, but I do hope to convince you to assume that the law craves reasonability so much that every legal rule has reasonability as its baseline. When you start from this position, the Range of Normal becomes not only easier to accept, but the very target of your negotiations.

Tied to the Three Property Rules of Family Law in in a future post, the Range of Normal becomes a way to resolve your case with reduced pain – financial, emotional, physical – and much more quickly. If both sides can see the Range of Normal as applied to the Three Property Rules and the basics of child custody and visitation, there is little more that needs to be done to bring the case to resolution. Let’s talk about the Three Property Rules of Family Law.

 

Footnotes

[1]Pro tip: “equity” means “fairness.” Fairness almost always means “reasonability.” Let’s say this: we cannot be sure that “reasonable” always means “fair” but we can be sure that “fair” always means “reasonable.” Thus, “equitable distribution” is “reasonable distribution,” under the particular circumstances of a given case.

[2]Custody decisions are perhaps the most challenging decisions to predict ahead of time. Judges are notoriously fickle when it comes to custody orders and there are variations between judges in the same courthouse and variations between the same judge’s orders within his or her courtroom. That said, the Range of Normal for most judges with mostly reasonable parents is readily predictable. In my courthouses, in front of my judges, the Range of Normal on a 14-day schedule is between 5-9 nights with each parent. In other words, unless I know I am in front of a 50-50 judge, or unless there are drugs, crimes, jail time, abuse or mental health issues, or one of the children is very young or has very serious developmental needs, or one parent works far away or odd hours, I can be sure that a judge will rule that one parent will have 5 nights out of 14 on the low-end and 9 nights out of 14 on the high end with 7 nights out of 14 as the most likely result. The other factors are, of course, where most litigation occurs. I may have mentioned that almost all of my highest litigation expenditure cases have been fighting within the Range of Normal: one parent (usually the Father) has 5 nights out of 14 but wants a true 50-50 (7 nights out of 14) and spends $50,000-$100,000 to try to get it.