Most of my divorce cases are cooperative and are not litigated but occasionally I take on a heavily litigated case. Usually these litigated cases serve as a reminder of why I am so passionate about trying to change the way people divorce. The contrast is striking between a litigated case and a collaborative case. This week I worked on two cases that provide great illustrations of that difference.
Case one had gone on for more that a year and was scheduled for trial March 9. A few days before trial we tried to resolve the matter through a mandatory settlement conference. These conferences are intense and emotionally draining but not nearly as much as trial can be. As is typical in these settlement conferences, the parties were in separate rooms with their respective attorneys as the mediator shuttled between rooms. The parties were wide apart and neither was willing to compromise. No settlement was reached and my opposing counsel took my client's deposition. Again my client endured four emotional hours during which irrelevant but potentially embarrassing questions came one after the other. These questions could never be asked at trial but an attorney has wide latitude during deposition. After the deposition I used my best negotiating skills to find resolution. Both parties remained intransigent. Somehow both parties believed they would prevail if they could just "tell it to the judge". So both attorneys prepared for trial.
Although trial date was March 9 we were on hold waiting for an available court. A divorce without children is lowest priority and we waited more than two weeks. Last Friday we received notice that trial would begin Monday morning on March 23. My client lives out of state and would have to find last minute plane tickets.
Both attorneys worked hard at coming to resolution. We know that trial would be very expensive and neither client would like the end result. We had been working at resolutions that would meet each of our clients priorities. Results of trial would "split the baby". We knew both parties were at risk of a property division that would not serve them well. So why would the parties continue to hold out for trial? They each believed that if they could just "tell it to the judge" the judge would realize how virtuous they each were and would find for them. My client had complaints about what her husband did for the last 20 years. Similarly her husband knew he would receive sympathy by relating his list of complaints. The truth is none of their complaints would even be heard by the judge.
Washington is a no fault, community property state. That means the bad acts of a party are not relevant. All the property in this case is community. A court would merely divide all property equally. My opposing counsel and I were working on an equitable division that would divide property in a way that made sense to the individual parties. She needed cash and he wanted to keep his business. We had that resolution well worked out and knew our clients would not do better at trial.
Late Friday we thought we had a good resolution and had agreement in principle. Where were we stuck? The wine glasses! She wanted them and he, who was still living in the house, claimed he did not know where they were. Stalemate. Does anyone believe the battle was really over the wine glasses? Years of anger and disappointment were wrapped up in those goblets. Both were still convinced they would get the sympathetic ear of the judge. Both attorneys knew these emotional issues would not be addressed at trial and were frustrated about preparing for trial when the relevant issues were relatively simple to resolve and the emotional issues were not relevant and the rules of evidence would prevent introduction of most testimony the clients wanted to present.
Sanity prevailed at 10 p.m. Friday as my esteemed opposing counsel and I worked out the last of the logistics by cell phone and e mail. Both attorneys are satisfied and neither client is. We saved our clients thousands of dollars and forged what we know is as equitable result as we could have in this situation. We gave our all only to end up with dissatisfied clients.
Case two also has gone on for over a year. However the delay has been at the clients' request. They have endured several traumatic events recently and needed to pause the divorce discussions. The clients had already crafted interim agreements with the help of their attorneys, financial planner and mental health coaches. Both husband and wife were content with the interim agreements and were not prejudiced by the delay.
Last week we had a "team meeting" with husband and wife, their attorneys and the financial planner. A lot has changed since our last meeting. The home value has plunged, the retirement accounts are significantly reduced, wife has lost her job and husband's job is at risk. Rather than expressing bitterness, both husband and wife expressed understanding and empathy. Both were concerned about the well being of the other in the future. They still want to dissolve the marriage but want to do so with dignity and respect. They have adult children and want to maintain a family relationship. They are my poster illustrations of the ideal collaborative case. This couple could easily have been in the same position as the litigious couple but they made a different choice early on in the divorce process. And that choice has made all the difference.
My mission is to change the way people divorce. I recruit others to help me spread the word that there is a different way. I hope these two stories provide incentive to choose a different way.