Tell it to the Judge

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.

PROJECT MANAGMENT OF THE DIVORCE PROCESS

As an attorney focusing on cooperative divorce I find that I have to customize the process depending on the individual couple. Some couples want as little involvement in the legal process as possible while some couples want to be more pro-active and actively apply project management techniques to the process. They want some degree of control over the process but recognize the need to delegate and to seek legal and financial advice. It may be helpful for this project manager type to consider the following:



NOTE: These guidelines apply to Washington State divorces only. All states are different. Consult with an attorney in your state.




Consider alternatives to traditional divorce litigation


Couples involved in the litigation process generally completely give up control of the process and are bound by court schedules, procedural issues, formal discovery processes and the litigating attorney’s processes. If a couple agrees to cooperate on the divorce they can explore various alternatives that will keep them out of court and allow them to maintain control.
Line up your professional team
In some cases, couples are able to engage in rational discussions and have general agreement on most issues. Often these couples believe they can simply get the forms on line and process their own divorce. The first thing they find is that the forms are voluminous, confusing and most of all – very intrusive. An experienced family law attorney can save the couple considerable frustration, time and help them preserve their privacy. It is important also to engage an attorney to assist in the timing of various filings.
The couple should determine if they each need an advocate to represent their interest or if each feels strong enough to advocate for herself/himself. Each can have separate representation and still have a non-adversarial divorce. A process called “Collaborative Law” had been developed by a group of legal professionals for this very purpose. In collaborative law the couple and their respective attorneys sign an agreement that they will not engage in litigation.
After the legal team has been assembled, the couple will want to engage additional professionals. If one of the parties owns a business, they will want to have an appraisal of that business. Again, the couple can agree on one business appraiser with the instruction to provide a neutral, unbiased report. Mortgage advisors, real estate agents, financial planners and tax professionals may be part of the financial team.
Mental health professionals can serve a valuable purpose on the team. A parenting specialist can help the couple with helping their children adjust to the process and offer guidance as to individualized parenting plans. Sometimes the couple will want to engage a mental health professional to help them communicate in a more positive manner.


Determine the issues


A divorce resolution usually resolves around a key set of issues. Some will be more difficult than others. Some issues will be emotional and some can be resolved in pragmatic, non-emotional solutions. The former are generally parenting plans and the latter involve property settlement. Child support and spousal maintenance can present a little of both. Making a list of issues without offering immediate solutions will help the couple prioritize the issues. Also to be addresses would be placing a value on various assets – home and business appraisals, pension plan and retirement account assessments.


Set timelines


The only timeline imposed by the state is that a couple must wait 90 days between filing a divorce and obtaining a decree. The rest is up to the couple. It may be wise to not file any legal papers until refinance or loans have been completed. Sometimes medical insurance may be an issue. Some couples complete everything in less than a month and then merely wait for the 90 day period. More likely, it will take several months to complete all the negotiations and agreements. Timelines help set goals for accomplishing certain processes to keep everyone on track. Most couples like to start the 90 day clock by filing a petition and then work on their settlement agreements but they may have valid reasons for postponing the filing.


Gather data


A couple will need to gather information regarding assets and debts. Have they considered pension and retirement accounts? What is the value of the home and what is the mortgage balance. Has all debt been accounted for. Besides value of a business, I have had couples needing an appraisal on collectibles, horses, farm land, classic cars and once a violin. It is necessary to have all the assets and debt on the table in order to obtain an equitable division.


Don’t forget the parenting seminar


Washington State requires all parents to attend a seminar “What about the Children” before a divorce can be completed. It is frustrating to have all agreements completed and the documents executed and find that the decree cannot be entered before the parents attend the seminar. It often takes a few weeks to get a space in the seminar. Early registration is encouraged.


Go to court for the final decree


An attorney can make the final step much more efficient and time saving than an individual appearing on his own. Only one of the parties need to go in front of the judge and family law attorneys can go in without a scheduled court date and usually know the best times and places and how to avoid a long wait. The final hearing is usually over in less than five minutes and waiting time is almost always minimal.

Conclusion

The legal community has recognized the need for non-adversarial divorce, especially for couples who have been married for a longer period of time, and have accumulated a variety of assets including real estate and retirement plans. Today, a group of attorneys are now active in collaborative law, divorce mediation, cooperative divorce and some are even available to help a couple in a so-called “kitchen table” divorce where the couple does most of the negotiations themselves. An on-line search on http://www.respectfuldivorce.org/ , collaborative law sight provides many resources and several resources are also available on my web site http://www.karinquirk.com/.

So, no matter how you decide to manage your divorce process, or what role you wish to play in it, remember that there are choices. By defining your role and responsibilities, much like other project management opportunities, divorce can be a process that is easier navigated than you think.

Tell it to the Judge

I have been making it my mission to change the way people think about divorce. I truly believe in empowering couples to dissolve their marriage in a respectful cooperative way without going to court. Most people find going to court for their family law cases to be a miserable experience. It is very public, sometimes humiliating and very intrusive. That is the reason I am actively participating in organizations that promote keeping family law cases out of court such as King County Collaborative Law, International Academy of Collaborative Professionals and various mediation organizations.(www.respectfuldivorce.org , www.collaborativepractice.com , www.mediate.com )

I recently found an unlikely ally -- A Judge! Actually he is a retired Court Commissioner, (Court Commissioners hear family law cases in this state) and had been on the bench for 25 years. This judge spoke to a conference of family law attorneys promoting mediation and collaborative law. From his point of view, there are many reasons couples should consider alternative dispute resolution. In the future I hope to have him write a guest column for me but in the meantime here are some points to consider.

Judges have to consider case law as precedent -- Judges are bound by laws made by the state legislature often in response to a particular case and various previous cases that have been determined by hiqher courts. You may think your case should be an exception to those laws. The judge may even vehemently disagree with those prior cases or legislation. Judges don't make new law and will rarely find exceptions -- even if the case is argued brilliantly and the facts appear unique to you.

The Judge doesn't know the case as well as you do -- The people who have the most information about the case are the parties. They in turn translate that information to their attorneys who then translate it for the Judge who has a very short time to digest the information and make an informed decision. A lot may get lost in translation. One Judge described this to me as a pyramid with the parties at the base and the Judge at the very top. As you move up the pyramid there is less and less information. Even the experts and witnesses have only part of the story.

Add to this the fact that the courtrooms are overcrowded, Judges may be hearing many cases in one day and Judges may have their own preferences or biases. Some are open to creative solutions and some are very traditional. Most of the Judges are fair and they are competent but they are still strangers to your particular situation.

Going to court is the most expensive option available in not just money but time and emotional trauma.

Read more about options on my web site. http://www.karinquirk.com/