Three Tips for Avoiding a Nightmare Divorce
Don't let the "Marriage Story" divorce become your divorce story.
Posted Dec 22, 2019
If you are about to divorce and you haven't seen "Marriage Story," you may want to.
This movie depicts a divorcing couple that gets swept up in an adversarial litigation process. Although custody is the main sticking point for the Charlie and Nicole and money less of a worry (the feeling you get is that they trust it will work out), the attorneys are seen relentlessly "advocating" on their clients' financial behalf, down to the last penny.
While this isn't everyone's experience in divorce court — I'm pretty sure they exaggerated the scene with the attorneys duking it out in front of the judge — it certainly shows what can happen.
Doing these three simple things can greatly improve your experience and reduce the chances of having a runaway divorce as Nicole and Charlie did.
1. Before hiring an attorney, decide what kind of dissolution process you want or need (litigation, mediation, single or co-mediator model, or collaborative).
If you start your divorce process by hiring an attorney or if you let your spouse pick their attorney first, that attorney will choose the process for you. If they are a litigator, you'll go through the litigation process; likewise, if you call a collaborative attorney, you'll go through a collaborative divorce.
My guess is that most attorneys assume you will have already researched divorce modalities and will assume you’ve chosen them because you want the type of divorce they offer (or they won't care).
A good attorney will explain your options to you, even if it means losing your business because they care more about what is in your (or your family's) best interest.
2. Don't choose your attorney by asking your friend, sister, or neighbor for the name of the person that represented them.
Get more information about them before signing them on and committing.
I know it's counterintuitive, but this one tip alone can be the difference between a nightmare dissolution and a smooth exit. Just as each divorce process varies, so does each divorce attorney.
Some attorneys are bulldogs and some are hand-holders; some are collaborators, some are litigators, and some are mediators; some specialize in custody disputes, some are better with a self-employed spouse situation; some are more knowledgeable about pre- and post-nuptial agreements; some care that you have limited funds and some don't; some are ethical and some are not.
The attorney that was "so fabulous" for your sister's divorce may be the absolute worst lawyer for you. This is true because your divorce is unique and the facts in your case will be different.
A good attorney will tell you what they can handle and what they can't. They will give you an idea of how to navigate through the process and what other professionals you might need.
3. Remember, your attorney is working for you.
Don't let them run roughshod over you.
"Marriage Story" did a good job of portraying how attorneys can sometimes take the proceedings too far or focus on items that don't need to be focused on.
My guess is this couple could easily have gone to mediation and they would have been able to find a financial compromise relatively quickly.
The custody issue was more problematic due to each parent wanting to live in a different place —3,000 miles apart. Yet, given who these people were, I had faith they could have done a better job resolving the issues than the attorneys allowed them to do. The two high end, highly contentious attorneys seemed at times to be arguing more for the sake of their egos than for the interest of their client. That’s definitely not the kind of lawyer most of you will want, although there is a place for that (if your ex is being totally unreasonable or purposefully provocative, for example, you may need a tough, take-charge litigator).
A good attorney will welcome questions from you, will make you feel heard, and will ask you what you want them to focus on.
Fairly Easy Case: Bad Attorney
You might have relatively few disagreements, but overly aggressive attorneys (or even just one jerky attorney) who can "churn the case," meaning they keep finding things to dispute in order to keep the case going. This is how attorneys (many of them sub-par that lack the skills to negotiate) make the big bucks. At $300 - $500 per hour in most areas, the bill can add up incredibly quickly.
Last year, a man in my practice whom I’ll call Ben, came in to get emotional support as he was embarking on a divorce his wife had asked for. He knew he had caused problems in the marriage with his heavy drinking (the straw that broke the camel’s back was his last drunk where he crossed a line and hit her), and he was appropriately remorseful. He also joined Alcoholics Anonymous.
Since he couldn’t go back and undo what he had done, he wanted to make it right in the divorce. Ben told me he wanted to make sure his wife and kids were well taken care of.
He hired a reasonable attorney. Unfortunately, his wife hired a very aggressive lawyer who decided that, not only would she go after every dime she could on behalf of her client, but she would attack Ben's character as well by filing a restraining order for the domestic violence that had occurred.
Not knowing any better, Ben's wife went along with this, although she tried to tell her lawyer that this physical incident was a one-off and not a pattern of repeated abuse.
As a result of the restraining order, Ben wasn’t able to see his kids for weeks. His ex just continued to go along with what her attorney was doing, even though something about it felt off.
By the end of their divorce, Ben, who had once been so remorseful and repentant, had changed his tune. No longer did he want to go above and beyond what the law would have required of him to make up for his misgivings. Instead, he felt strongly that he wasn’t going to give her a dime more than he had to. All because his wife’s attorney was overzealous, inexperienced, or both.
Tough Case: Good Attorney
On the contrary, you might have a complex or contentious relationship with your ex, but if you both have attorneys who are more interested in settling your case than "winning," you may actually be done fairly expeditiously, and therefore less expensively.
Lorianne and Jim had been married for 27 years, they had three kids (one with special needs), and they each owned a business (he was a hedge fund manager and she was an architect). They each had separate property that they had comingled, which added to the complexity of their finances.
Lorianne didn’t want the divorce and she was angry, but she was ultimately able to accept that she couldn’t “make” Jim stay. She was able to rise above her emotions and come to the bargaining table. Although she had moments where she wanted to lash out and punish Jim, she knew her emotions would cause problems and would only add to the cost of everything. She kept her anger and sadness out of the negotiations.
Before even beginning the legal part of the process, Jim and Lorianne sat down together to talk about what they each wanted regarding finances and custody. They were able to come to general agreements about everything. They then researched attorneys and found two that worked together often and well.
By the time they met with their respective attorneys, they were able to tell them what they wanted and needed. The attorneys refined the agreements and made some small changes, but all in all, Lorianne and Jim were in charge of the process and the outcome. There were no surprises or ambushes and the expenses were kept to a minimum.
Questions to ask your attorney before hiring an attorney:
1. What modality of divorce do you practice (litigation, collaborative or mediation)?
2. What do you specialize in and what is your skillset?
3. What is your style (strong advocate or mild-mannered or somewhere in between)? Be careful to get observations from others on this one, as not every attorney may see themselves accurately. One attorney was known for being contentious but told the woman hiring him that he was collaborative. Just because he knew how to collaborate didn't mean he would collaborate. When she heard from others what a fighter he was, she was able to see she needed a different lawyer.
4. How can we best work together?
5. I will likely have questions or input about the outcome. Are you okay with that?
6. Are there other attorneys you work better with?
There are other factors that drive up the cost of a divorce, such as the level of emotion you and your spouse are experiencing, as well as what, if anything, you're not able to agree on. The more you disagree, the more your divorce will cost. Divorce isn't easy for anyone. With these tips in mind, finding an attorney to guide you through the process may make your journey smoother.