|Oregon State Bar Bulletin MAY 2011|
Fair and Just:
Settling Divorces in a Humane and Creative Way
By Roger Ley
It is time to end the carnage in divorce court.
This is what I would say to a client coming in to my office for the first time to talk about dissolution. I would say:
There are two basic ways to approach a divorce. The first and traditional way is to try to get as much as possible and give as little as possible. Pay the least child support. Hang on to your investments. Get your spouse to pay as much of the mortgage as possible, and so forth. There are many ways of doing this that vary from open courthouse warfare to polite negotiation with friendly lawyers. This is the way lawyers have looked at divorce and most everything else for, oh, more or less, 800 years.
As I think you can sense, I think there is a better way, at least for some people. Propose a resolution that is fairest and best for you and your spouse. Propose what you think is most beneficial for both of you, almost as if you were establishing a partnership rather than ending one. If you resolve your divorce this way you will feel good about it in the years to come, and when you run into your ex at the Safeway, you won’t have to run and hide in the dairy department.
I know that divorcing people have hard feelings. They feel foolish, angry, resentful, vindictive and just about everything else people can feel. Sometimes these feelings are justified, sometimes not, but there they are. But most people also have a reservoir of good will toward their ex, even if your ex cheated you or hurt you in some devastating way. Acknowledge all that wreckage and still resolve the divorce in the best interest of you and all. You can call it the Dalai Lama approach to dissolution.
One thing I want to make clear: your spouse may have harmed you in some tangible way and you may want redress. Maybe your spouse squandered money in Las Vegas and you want it back. It’s not my goal to make you forget bygones and move ahead with a hearts-and-flowers-Hallmark-card divorce. It is perfectly proper to want things returned to you, and that is consistent with wanting the best for yourself and your spouse. Your divorce could be resolved with your spouse paying back every cent he or she squandered at the NGK Grand, or whatever they call the casinos down there.
Getting back to all those conflicting emotions and goals, you may want to talk to a psychologist or a personal adviser or even a friend about conflicts with your ex. I might even connect you with a lay person, an ordinary person hopefully with common sense, with whom you could meet and talk. You buy the coffee, they listen, you talk, they talk, and if it helps it’s cheap counseling! Very often if you keep talking through a knotty problem it helps to get closer to a solution.
You may also need some help figuring out just what you do want: you may be uncertain whether to pursue a career after this transition, or stop working, or move or do some else. Counselors can help you with that. This process can even be fun! You are getting a chance to start over in life, so it’s a bit like commencement. This goes for your spouse too.
To get to the tough process of dividing assets and responsibilities and obligations, I propose that you and I apply imagination and intuition to make proposals that are in the best interest of all. It takes time and thought to arrive at a settlement that not only seems right but also pans out when you look at hard numbers and tangible needs. Once you have a general idea of what you want, we may hire an accountant or financial planner to figure out the best way to get the result you want with the least amount of taxes, expenses and other avoidable friction. “Avoidable friction” includes keeping down the cost for attorneys and the cost of the disruptions that any litigation brings on.
Maybe you can provide something for your ex that he or she could never otherwise have. You might be able to finance career training at reasonable cost to you and provide the spouse with an occupation that will provide satisfaction for a long time. That should be satisfying to you. Yes, I know, everyone sometimes wants to leave their ex tied up on the railroad tracks with no trains coming for days, but you can’t do that, and you will probably get over it, and everyone has some good will in them. My point really is that if the two of you and I and the other lawyer put our heads together and pool resources and ideas, we can come up with a settlement that provides more money, wealth, quality time — whatever you want — than if you just split the cars down the middle and walk away. Understand?
I have seen cases where one spouse arranged and paid for substance abuse treatment for her ex, at no cost to him, and in exchange he waived his claim against her assets, those assets being houses that sounded like the better addresses on the Monopoly board. She saved his life. He gave her back her property. Those folks are happy today.
That’s the general idea. Here are some practical considerations.
Sometimes the other side is suspicious, contentious and uncooperative, and here I speak with droll understatement. If we make offers that are based on the welfare of both, they just might catch on that the offers are far better and far more digestible than what could be gotten via plan A way back in the beginning of this discussion: battling the traditional way for the most for you and the least for them, the un-Dalai Lama approach. Seeing that the offers are pretty good, your spouse may be prone to consider them favorably. The other side might also catch on that a cooperating settlement would be far cheaper, far less stressful, and far less uncertain than a battlefield settlement or a trial resolution. Hopefully they will end up negotiating with the same goal of resolution in the interest of all.
It is good practice to look at court cases, court rules and divorce law to see how your negotiated settlement compares with what might happen if you went to court or if you negotiated conventionally. I as your lawyer can help you do that.
And before I forget, I have to remind you that not all divorces work the way we are talking. From the look on your face I can see that you know that. Some divorces are a process of protecting you from a spouse gone bad who is trying to hurt you. They may owe you money; they may be abusing your kids; they may be abusing you. Your divorce could be a process of saving your kids from a bad spouse. In those “self-defense” cases, court intervention and supervision are appropriate and we go back to what lawyers have been trained forever to do: protect you in court. I hope this isn’t happening or doesn’t happen. But if it does, you will need a court lawyer, and I will put you in touch with one who goes to court on a regular basis. That lawyer should be available on a moment’s notice in case things go wrong and you need immediate court protection. Incidentally, this is an informal version of the English system where some lawyers called solicitors talk and negotiate, and other lawyers called barristers do battle.
I also want to point out that divorce can be a lengthy process with many turns and changes. As negotiations develop, you may change your views on what you want you and your ex to have. You may start out feeling benevolent and end up not so benevolent. Or vice versa. I’m a lawyer, not a psychologist, so I can help you articulate your concerns, but you make the decision about how benevolent you want to be.
It’s important for both of us to stay on track and communicate by word and “body language” that we are determined to resolve this case in a way that makes everyone happy in the end. Tenacious.
Now with regard to fees, your estate, with all the intangibles — pensions, child support obligations, cars, trucks, toys and imponderables — has a value of (let’s say) perhaps $1.5 million. If you were selling real property for $1.5 million, the realtor commission would be about $90,000. Your fee should be far less than that. I don’t know how much, but I want the fee to be reasonable. I want you to know that I want this to be a success too. Just like you, I want to look back on this years from now and feel that I did a good job in helping you. Just like you, I go to the Safeway. And I want to look you — or your ex — in the eye and not have to hide in the dairy counter either.
Well, that’s it. I haven’t figured out what to call it. “Elegant divorce” doesn’t fit. “Cooperative divorce” sounds spineless and it’s taken. “Good will divorce” doesn’t have the right tone either. “Benevolent divorce,” too wishy-washy perhaps. I like the Dalai Lama divorce and I do get ideas from the Dalai Lama, but it isn’t fair to tag him with a plan that is my own. The Barry White divorce? Still not quite right. I like “fair and just divorce resolution”; it’s clunky, but I like it. Maybe you can come up with a better name. For now I call it “benevolent divorce.”
Let me sum up. The old way to resolve divorces and most cases was to try to get the most for you and the least for them. It works, but it is awkward and painful and it certainly doesn’t build friendship. My idea is to start from the very beginning looking for a fair and just resolution of your case. That way everyone will be satisfied with themselves when they look back in years to come. And no one has to hide in the Safeway.
ABOUT THE AUTHOR
Roger Ley practiced general law in Seattle from 1970 until 2007, when he relocated to Svensen, Ore., a rural community near Astoria, and joined the Oregon State Bar. He loosely bases this article’s examples on cases he settled and on cases he didn’t. His email address is firstname.lastname@example.org.
© Roger Ley 2011. All rights reserved.