How My Divorce Made Me a Better Divorce Lawyer
Going through divorce himself, enables Larry Bloom to give wiser advise.
Posted January 27, 2012
We are pleased to have Lawrence H. Bloom, a New York and New Jersey based matrimonial attorney present his views of divorce as a client - and not just as an attorney. Larry also hosts a weekly radio show, "The Divorce Hour with Larry Bloom", Fridays at noon Eastern Time at www.talkingalternative.com, with podcasts available on The Divorce Hour page of the same site.
Three years ago next week will be the third anniversary of my departure from the marital residence.
Three years ago, having been a practicing divorce lawyer for 29 years with a subspecialty of high conflict divorce, I thought I knew everything there was to know about divorce. I knew the law, the strategies and could read my clients, their spouses, and most importantly their lawyers, as well as many of the judges. I had a great handle on what I could get away with for my clients and how I could maximize their returns.
In my own sales spiel, I would talk about the three kinds of lawyers: the timid negotiator who would fold like a cheap suit when the judge said "Call your first witness;" the "I like to try cases" lawyer who cared more about him/herself than was actually best for the client; and the "gangbuster" who would begin litigation like gangbusters to soften the opposition with a very strong opening salvo in order to get the other side to throw up their hands in defeat.
I thought I was the latter, with a reputation with other lawyers and judges as an aggressive litigator who always tried to get the best results, usually with a negotiated resolution prior to the trial date, but who could ably try a case when necessary.
Statistics say that only 2% of divorces go to trial and conclusion (with a large portion of trial results ultimately appealed); my number was closer to 10%.
I was and still am proud of my gangbuster philosophy, of my negotiated settlements, and of my trial and appellate work. What has changed with my own divorce?
In a couple of words: perspective and empathy.
The truth is that I didn't follow any of my own carefully crafted, albeit myopic, "rules" about divorce.
"Men don't leave unless they have someone to go to!" I said it so many times that I not only did I believe it axiomatically, but it was one of the few things that I had convinced my then wife, she who shall not be named, as absolute fact.
Yet I left without "someone to go to." The specific reasons of why I left are not relevant here; and I prefer to air my dirty laundry privately rather than publicly. However, one morning, as I rapidly approached my 55 birthday, I had an epiphany: I wasn't merely unhappy, I was miserable. With two-thirds of my life over, I did not want to spend the last third in the same state. So I left.
Not only did I leave without a replacement (something many, but hardly all, men do), but I violated what I described as The Prime Directive: Don't go for nothing. See what you can get in return from your wife so that she would have the pleasure of having you out of the house. In other words, I was advising my own clients that their own piece of mind and sometimes their own sanity should be downgraded as a priority to the divorce negotiation process.
In retrospect, I was the one who was insane. Yes, it helps the lawyer's efforts to be able to "trade" leaving for some financial or other benefit. But when it came to me, and more importantly when it came to my own children, "what I could get to go" was not going to trump my peace of mind and the impact on my children. The second epiphany I had was that my continued presence in my home fulfilled a lie: by remaining in the house, I was benefiting my children. No, what I was doing was benefiting myself.
As a divorce attorney for decades I never wanted to be a part-time dad. In fact, the primary reason I got married in the first place was to become a father. I pigheadedly maintained that by staying in my house, I was doing a service to my children who needed their father present on a daily basis.
So, I was willing to be quite unhappy in my marriage, but to downgrade its importance, placing it below seeing my children daily.
I thought, and to some degree still believe, that I was the buffer between my ex's behavior (and I have chosen this word carefully so as to be the least provocative) and the psychological well-being of my children.
While I still consider this true, I also consider it to be a crock of ...I stayed because I was selfish, because I wanted to see those kids daily (although at that point my son was in high school and my daughter was a sophomore at an out-of-state college).
I now believe that my wife and I were doing untold damage to our children.
The epiphany: Were we being good role models to them? Was I showing my son how to be a good husband or how to treat his wife one day? What was I telling my daughter?
After all, the only marriage I had really known as a child was that of my parents. The way they interacted with one another served as my basis for what a marriage should be. My God, I was already in my mid-twenties when I watched a friend's parents show me for the very first time what true love was; when I saw a gleam in an eye and witnessed a man as he became instantaneously twenty years younger every time his wife of 40+ years walk into the room.
Yet that ideal marriage (at least from my perspective, and probably not from the perspective of their son), while something I have never forgotten, was less of an influence on me than that of the tame (I am purposely choosing my adjectives carefully) marriage of my parents. Certainly, my marriage mirrored that of my parents than any "ideal."
Theirs lasted more than 50 years ending in death, while mine made it 25 years before separation and divorce.
But I digress...
I left without someone to go to. I left for my own sanity first, for my own piece of mind. Secondarily, I left to show the same children I thought I could not live without seeing on a daily basis that they didn't need to have the same dysfunctional marriage as their parents.
And that is the number 1 change in my divorce practice. Divorce is a life change; and the decision to divorce (as well as many of the in-divorce decisions), belongs not to the lawyer but to the client.
What I present now are more options. There is no longer the black-and-white directive: "Don't leave your home. Let's see what we can get in return for you to voluntarily leave." That remains an option, but it is not the first option. "What is best for your emotional well-being?" "What is best for your children? What are you financially able to afford?" All of these things are far more important than simply gaining a negotiating advantage.
"Should I stay or should I go?" This is not a lawyer's decision; nor is it a decision considered in a vacuum. It's easy - and somewhat profitable - for the divorce lawyer to say "Stay!" even in a "War of the Roses" ultimate dysfunction. The divorce litigant has to weigh all of the factors involving themselves, their children, and their issues - personal, legal, strategic - before arriving at an answer.
I believe that this approach is more sensitive to the true needs of the divorce litigant; and it also allows the attorney to gain more credibility with his or her own client. As a divorce lawyer, I am often asked, "When can I date?"
As a younger and thus more black-and-white lawyer, I would discourage dating. I was naïve and did not realize that most of these people were already dating and wanted to be told it was okay. My discouragement of dating served not to limit the dating but to limit my own credibility with my own client. It did not take until my own divorce to change the advice to one of discretion:"If you know your ex hangs out at Joe's Bar, don't take your boy/girlfriend to Joe's Bar. Legally, it really makes no difference for your case if you are indiscreet, but from a practical point of view, it will make your ex far more likely to be unreasonable in their demands in the litigation. Plus, it is less confusing for the children.
There are other changes to my practice which can best be described as "Don't sweat the small stuff!" I am talking about "stuff" or replaceable items. It makes no sense to pay a lawyer two or three times the replacement value of something just to keep it for yourself or to keep it away from your ex. I know that for me, I wanted my grandmother's vase. It had no value, but it was my grandmother's and I wanted it. When my ex wife agreed to let me have it, I was happy - at least until the vase with which I was presented was another vase that had no relation to my grandmother.
I could have spent thousands of dollars arguing this through counsel (I was smart enough to have my own divorce lawyer) or I could accept what I was given. Fortunately, from my perspective as a divorce lawyer, I chose the latter. After all, it was only a "thing" and one I could live without.
Lesson: I have seen too many people spend money they don't have over something they don't need. After my own divorce, I am far more sensitive to value. I now ask, "Is it really worth spending hours of my time for something that could be replaced by much less of a cost?"
And while giving in on "stuff" may pave a road of good will for "the big issues" such as large property distribution, amounts of support, and parental access to the children, it also may not. Divorce does not follow the adage that you attract more bees with honey than you do with vinegar. But you show more character and a stronger front when you save your "vinegar," or at least your "line in the sand," for the important issues.
Finally, let me try to lighten the mood here. I used to advise people that I could help them with any issue except pets. I would say, "I don't know what standard to apply. Do we equitably distribute the dog or is it best interests of the dog? Do you really want to pay me to have that standard established, knowing that it will take a trial and an appeal with which to do so?" Some people I know have spent more on legal fees for custody of pets that they have for custody of their children.
Someone has now gone to the trouble and expense of litigating this issue. Pets are property and distributed as such. I can only imagine what it cost for that law to be developed. As with most other aspects of law, don't simply be guided by "law." It is always best to know your judge.
In one instance, there was an issue about custody of two dogs before a judge (who later retired to open an animal shelter). When the lawyers finally told that judge that we had settled by giving each spouse one dog, the judge responded, "Absolutely not!"
Thank you again Mark for both the idea and the forum.
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