The Desert Island Theory

Remember the old game, “If you were stranded on a desert island and could only bring one album* what would it be?”

(* or DVD, or CD, or book, or movie, or friend…)

The first question, of course, is if you were stranded on a desert island, how did you have time to pack that favorite item?  The second is if you had time to pack, is a form of entertainment really what you would choose first? Not survival gear? The third is if you knew you would be stranded, wouldn’t you cancel the trip to that desert island right away?

But, presuming that we suspend our disbelief and abide by the rules of the game, it does present an interesting question.  What one form of entertainment offers you enough diversity and challenge that it could continue to be a pleasant experience well after all others would have worn thin?  A Dickens novel, a recording of the London philharmonic playing Beethoven, or a live set of Miles Davis at Newport Jazz festival are some customary responses.  Something so great and complex and encompassing that it would allow you to discover more about yourself and the world the more time you spent with it.

Consider this as the first question you should ask yourself when you know you are going to get a divorce.  If you could only bring one item with you into the world after your divorce, what would it be?  Consider, you are trading your old life for a new one, and that a lot of the old behavior patterns will no longer apply.  Maybe “all” you want is the house.  But do you want the house so badly that you would be willing to give away the furnishings in it?  Or do you want a particular piece of art that the two of you acquired during the marriage?  Maybe just your children, or your freedom, or your peace of mind is more valuable than any item in the world to you.

This is not to say that you will only be allowed to keep one thing.   Chances are good that you will each be allowed to keep an equitable portion of the accumulated items and assets.  The point is that not each and every item is of equal import.  Do not fight about the toaster oven and the televisions and the motorboat and the house with equal fervor.  Rather, decide in advance what one item matters to you most and let the rest of it be of equal non-importance to you.

Here is the caveat, though.  Just because you know what one item matters most, does not necessarily mean you have to announce it at the beginning of your negotiations.  Telling an angry spouse that he or she can easily prolong the fight by merely withholding one item could derail a lot of good intentions.  Wait.  See what the tenor of negotiations is going to be.  When you are sure that you can safely identify your desert island item, do it.  And be willing to leave the rest of it behind.

What We Love: Most material items are replaceable.  Your happiness is unique and precious.  Refuse to let anyone take away your happiness.  Then even a desert island can become your own private paradise.

Sharon Oberst DeFala

How Being a Taker Plays Out in Divorce

selfishYou know these people – the ones who weigh every relationship, every opportunity, as an opportunity to “get” more.  We’ll call them the Takersons.  A Takerson has two friends, one owns a boat; the other does not.  One Saturday evening the Takersons have dinner plans with their non-boat friends.   Everyone has hired babysitters, arranged their plans, and made the appropriate reservations. Everyone is getting ready to go out.  The Takersons get a last-minute phone call from their boat friends, “Our plans tonight just got canceled.  Are you busy?  Want to come over?”

Obviously there are a few available responses at that moment, such as, “Thanks for the call – we’ll have to take a rain check because we already have plans.”  Or, “We have dinner plans with other friends, but the more the merrier – why don’t you join us?”  Or, “Depending on what you have in mind, would there be room for 2 couples; we were already planning to see our other friends.”   Or, the standard Takersons response, “Yes.  We will just tell our friends that something better came up.”

Well, in my experience, when Takersons get divorced, things are not much different.  If there are two televisions, some people might say, “We each get one.”  Others will say, “You take the newer one,” or even “I’ll keep the newer one.”  But a Takerson says, “I’ll need both, you can go buy your own.”

Takersons say sentences like, “I’m sure your mother intended for me to keep the engagement ring when she gave it to you for me,” and “If I don’t end up using the lawn tools I can always sell them later,” and “Child support is one thing, but you will still have to pay for the kids’ shoes and clothes and haircuts.  I can’t pay for that stuff out of my money.”

Sometimes Takersons even stay married for surprising reasons.  “I hate that S.O.B., but if we get divorced, I would have to get a job to make ends meet,” or “If we get divorced while her parents are still alive, I might be cut out of my share of their estate.”

To me, the best part about watching a Takerson in action is the moment of revelation (when it comes) at the end of a long strenuous and expensive battle, over something like a flat screen TV.  I do not always have the opportunity to do this, but when I can, I like to analyze the cost-benefit ratios. Such, as a new TV would have cost you $800.  The motion you filed to keep it cost your attorney three hours, plus your wife’s attorney three hours. So that comes to $ 1500 in out-of-pocket costs.  Add in the fact that the time spent in court keeps both of you out of work for the day.”  No matter who wins that argument – whoever gets to keep the TV – there is a net loss to the family of money, time, and good will.

In fact, this is a somewhat minor example.  I have seen people fight about an engagement ring, including two court hearings, (and the papers and preparation time necessary for those two hearings) trips to two jewelry appraisers, and  the result in which a jeweler had to be hired to remove the stone from its setting.  One party kept the setting, the other kept the stone, and had to make an additional payment to balance the cost of the stone.  So, the wife’s cost of keeping “her” setting, and fighting over her ex-mother-in-law’s diamond cost her approximately $7500. The cost of keeping his mother’s stone cost the husband around $10,000.  The attorneys made a combined profit of $15,000.

A simpler solution might have been for the husband to say, “Here is $5000 in cash – go buy yourself a ring that you like and let me keep my mother’s ring.”   Even a Takerson would be compelled to say yes in that situation!

What We Love:   Even if the person you are divorcing is the greediest person in the world, look at the bright side – at least you won’t be married for much longer!

– Sharon Oberst DeFala

The Cost of Divorce

Image“How long will this take, and how much is it going to cost me?” This is a question divorce attorneys frequently hear from their clients.  Sometimes it is a question regarding an aspect of the divorce – such as a custody modification, or the entire divorce.  It is an interesting question.

First, there are some basics, most states have a statutorily mandated waiting period – ranging from 6 weeks to 12 months – during which you cannot get divorced.  So it will take at least that long; and a lot of law firms charge a minimum non-refundable fee set aside to retain their time for this matter – so it will cost at least that much.

Imagine you are working as a maître d’ in a high-end restaurant and a man walks in by himself, and walks up to you and says, “How long will this take, and how much is it going to cost me?”  What would you tell him?  You might start by asking a few questions of your own, finding out the size of the party; whether it is a special occasion; whether someone else is planning to pay the bill, etc.

Here are a few questions written in “restaurant” and translated into “divorce” to give you a feel of how long a divorce might take, and what it might cost.

RESTAURANT:   How many people are in your party?

DIVORCE:  Do you have any minor children?

ANSWER:  The more people – the more the bill is likely to cost.

RESTAURANT:   Is this a special occasion, such as birthday or anniversary?

DIVORCE:  Do you foresee a fight about custody or asset distribution?

ANSWER:  These items will tend to increase the cost of the bill.

RESTAURANT:   Will you be paying your own way, or is it a gift?

DIVORCE:  Are you financing this from your own pocket or someone else’s?

ANSWER:  While it will cost the “patron” nothing, people have a tendency to run higher bills, and take a longer time, when it is not their own money funding it.

RESTAURANT:   Do you have tickets to a show this evening?

DIVORCE:  Is either of the parties pregnant, or involved with someone else?

ANSWER:  Just like theater patrons who need to have a quick bite and get out the door, divorcing parties can find ways to shorten the process if they have already found their next relationship.

RESTAURANT:   Will anyone be consuming alcohol?

DIVORCE:  Will anyone be consuming alcohol?

ANSWER:  Nothing sky-rockets a restaurant bill like a few cocktails, or a bottle of wine.  Similarly, nothing makes an already unhappy couple find reasons to fight like letting them drink at the wrong times or in the wrong combinations.  Even amicable people seem to pick fights when they have had too much to drink.

Every case is different, and each divorce has its own built-in trajectory of how long it is going to take from when the first party knows a divorce is necessary until a judge declares them both single and unmarried.  You can affect some, but not all, of the variables.  Knowing what to expect, though, can help make the process more palatable.

What We Love:  Speaking of restaurants – why not start planning your divorce party, to give you something positive to focus on, while the process takes its time.

It’s always wise to offer kindness


I am inspired by one of the couples I am divorcing in July.  This is what they have:  debts, a looming foreclosure, potential bankruptcy, 1 working vehicle (unregistered), 3 surviving parents (none of whom are helpful), one angry sister-in-law, 2 known affairs, raging alcoholism, and two young children.

Only one spouse is capable of earning a consistent salary, and it is not a very large one.

They do not have enough income between them to pay rent right now, along with their other bills, so they are forced to continue cohabiting in the house that will be foreclosed as soon as the bank gets around to it.

It is hard to imagine a more fertile ground for rancor.

And, yet, somehow, these people are gracious.  They acknowledge their faults, they do not interrupt each other; they kiss each other (and me!) hello and good-bye at each of our meetings.  When one of them does a side job and gets a little pocket cash, they automatically share it with each other.  Not quite 50/50, probably 60/40.  But, still.  No one asks; it is just a voluntary action. “I have some money” means “we have some money.”

Frankly, as many amicable divorces as I have done, I have never seen anything else quite like this.

We were in the middle of negotiating child care.  The husband was adamantly stating that he cannot continue being the one who transports the children to and from school every single day. He explained that there needs to be some parity. When in the middle of a sentence, he glanced down at his watch and realized it was time to go pick them up from school.  He interrupted his own argument, excused himself with hugs and kisses all around, and just walked quietly out the door to go get the kids.

Of course, after he was gone, the wife and I worked together to figure out a few strategies to alleviate some of his concerns, which they have since begun implementing.

All of this does not mean that they should stay married. They are no longer each other’s spouse in too many ways. And, trust me they have their moments of rancor.  The wife told me that she recently threw the contents of a glass of whiskey in her husband’s face.

But, overall, day in and day out, they respect the fact that they have children together and that they both live in that house together, and that they have known each other through some very difficult times.  They respect the fact that there are emotional landmines hidden all over their home, and that it is wise to tread lightly.  These are people who have almost nothing left and are maybe a little frightened of losing what they do have.

And, so they find kindness and grace, and they share it with each other, and others, willingly.  And in doing so, they give themselves much more than money, cars and houses. They give themselves peace.

What We Love:  When the only thing you have to offer is kindness, it is wise to offer kindness.

The light at the end of the tunnel..


Two old friends, Jane & Susan, run into each other for the first time in years. 
Jane: Sue, you look fantastic! What’s your secret?
Susan: I lost 200 pounds of unwanted dead weight.
Jane: how?
Susan: I got a divorce!
This is what criminal attorneys say about divorce:

“In criminal law we represent some of the worst members of society, but for the time of the representation, they are on their absolute best behavior. Whereas, in a divorce, you represent some of the best members of society, but for the time of the representation they are on their absolute worst behavior.”

One of the perks of my job is running into my divorced clients around town. Generally, even in cases of amicable divorce, these are people that I have seen at their absolute worst.

And, while their behavior may have been appalling, that is only one small aspect of “their worst.” There is the physical appearance – sometimes they let their personal grooming slide and they gain or lose too much weight. If they are trying to demonstrate that the financial circumstances will be difficult, they might start wearing ripped, old clothes, sometimes too big or too small on them.

Also, their worst mental condition. These people are losing sleep, they might be angry or depressed, distracted by trying to figure out all the details of their new lives, or just overwhelmed by the number of decisions they need to make. Ironically, this can lead to a complete inability to make even the simplest decisions.

During the divorce process I see people who are short-tempered, confused, distracted (sometimes to the point of rudeness), and insecure. I have seen people come to my office, thinking that they are prepared to discuss life-altering arrangements, clearly drunk, high, or stoned. And then surprised when I point out that it is obvious they are in an altered state.

But, whereas the criminal attorney releases a criminal either directly back into society or first into jail, what I release into society is a chrysalis.  And then, over time, what I see are my former clients at their most happy, alive, “best” selves.

I love when I get to see the “after” – the women who have balanced their budgets on their own and can now suddenly afford nicer clothes. The men who have started hitting the gym instead of the couch for the first time since college.  The people who have a new sense of confidence, of their own ability to face, and succeed in, the real world.

When a new client comes in, at the bottom of their own well and forecasting nothing but doom ahead I try to paint the picture of where they are heading.  The road through divorce is difficult, but it frequently leads to someplace much better than where they are leaving.

What We Love:  No matter how dark things are in the middle of your divorce, the process will end and you will have your own life back. Sometimes, even better than you left it.

Bling in Your Face..


What brings divorced people back to a lawyer’s office, or the courthouse?  Usually, a “significant change in circumstances,” or at least the perception of a change in circumstances.

Most states have a rule that child support (and sometimes alimony) can be changed after the divorce is final, but only if one spouse’s circumstances change in a way that can be defined as “significant.”  Examples include the payor spouse losing a job, or the payee spouse getting a very good job.   A standard measurement for how significant the change must be is about 15%.  So, if your ex-husband was making $100,000 per year when you got divorced and now he is making $110,000, there probably has not been a significant enough increase for you to go back to court and win a larger alimony or support order.  (Unless you simultaneously suffered a $5000/year pay cut, maybe.)

But, it is a common mistake that people make when they are watching someone else’s money.  That extra $10,000 per year might be just enough to have let him start driving a fancier car; maybe take the kids on a cruise, instead of just the usual vacation; or even – heaven forbid! – take his girlfriend on a cruise that did not include the children.  This might all be just enough to get an ex-wife’s attention, but not enough to make it worth her while.

Another common misperception is when the new wife (or husband) thinks the first spouse is getting “too good a deal.”  A beleaguered husband might be getting an ear-full of “she has all the nicest clothes and jewelry. I think you pay too much child support.”  Or a re-married wife might find herself explaining why child support for “his” kid doesn’t stretch as far as it should.

There is not a lot to be done about petty jealousy. People are either pre-disposed to it or they are not.  Bringing a motion to the court for every perceived windfall and boondoggle only benefits the lawyers and rarely the parties.

One way to avoid extraneous trips to court, however, might be as simple as a little generosity and an honest accounting.   What if the husband in the first example called his ex-wife and said, “I got a small raise.  It is not enough that the courts are going to increase my alimony and support payments, but I realize it is enough to take the kids on a nicer vacation.  But, before I do that, would you like me to pay for their summer camp, instead?  Or, can I send you a check for an extra week’s support to do something nice for yourself, or for the kids?”  It might only make a greedy person even greedier; or it might show the kind of goodwill that makes friends out of ex-wives.

Regardless of how your ex finds out that you are making more money; one way to put them on the detective trail is with a lot of in-your-face expenses.  Maybe keep driving that Hyundai, at least until the kids are out of college.

What We Love:  Just as it doesn’t take much to stir up someone’s jealousy; it can be just as easy to create a little gratitude. Sometimes a small amount of generosity can go a long way.

No Major Decisions by Text


The digital age of divorce has its benefits.  My clients and I can keep in touch with each other 24/7 via text and email. We used to reserve most of our communications for business hours, and only those hours when I was not in court or meeting with someone else.

They all had my home phone number, in case of emergencies, but really only for emergencies.   Now, I get notifications on my smart phone all of the time.  Quick questions like, “Am I allowed to sign a lease on a new car?”  More urgent concerns like, “he says he can kick us out of the house tonight, because my name is not on the deed.”  And even short status updates: “just left the doctor’s office, everything is fine.”

Attorneys generally bill in 6 minute increments, one tenth of an hour at a time.  The time it takes me to read and reply to most of these texts is less than 6 minutes; so I don’t have to bill the client for my time.  A win-win for everyone – with the caveat that the client is not receiving my fully thought-out undivided attention.  Sometimes we need to schedule a meeting, or at least a phone call, for the more complicated questions.

A recent such text exchange went something like this:

Client: “We have been getting along well all weekend.”

Me:  “Great. Keep it that way.”

10 minutes later. . .

Client: “What is the difference between divorce & separation?”

Me: “We can talk about it on Monday.”

Client: “Maybe we should withdraw the divorce action.”

Me:  “No decisions by text.”

Granted, this is an extreme example, but the truth of the matter is that amicable divorces present their own unique challenges.  There are ways in which it is more difficult to divorce someone you like than someone you hate.  Clients frequently vacillate about whether they can stick it out, after all.

But, no one ever gets divorced by accident.  A good weekend together is not the same thing as a good marriage.  And, most importantly the pro/con analysis that is required in making these decisions takes the physical and mental presence of at least two rational adults.  Divorce is not something to be entered, or abandoned, lightly.

So, keep texting with your attorney, “his alimony check cleared,” “her mother dropped off the kids to me,”  “can we meet next Tuesday morning?”  But, always remember to use it for its intended purpose; quick exchange of information, not life-altering decisions.

What We Love:  The more information your attorney has, the better she is able to run your case for you.  Texting can help keep you both on the same page without expensive extra office visits.

Are Post-Nuptial Agreements a Good Idea For You?


We have all heard of the fear and loathing associated with Pre- Nuptial, or pre-marital, agreements.  Accusations by the greedy and suspicious families of the newly-engaged can lead the love-struck straight to lawyers’ offices.  Innocence dashed on the rocks of such concepts as “gold digger,” “mercenary,” and worse.  Long before anyone has a chance to prove their own best (or worst) intentions, they are made to feel defensive and alone in the company of someone they love.

(As an aside, I have written plenty of pre-nuptial agreements, and not one of them has ever fit those stereotypes.)

The post-nuptial (or during-the-marriage) agreement, however, is written once people have let their guard down and become who they actually are within the marriage.  When we no longer suck in our guts; or make sure the eye make-up is on before breakfast.  Post-nuptial agreements are rarely the one-sided defense mechanism of the trust-funders.

If a pre-nuptial agreement can be seen as someone’s attempt at preventing an unwanted marriage, then the “post-nup” could best be described as someone trying to prevent an unwanted divorce.

While nowhere near as romantic as a renewal of vows; it really does play along similar lines. Sometimes the simple act of writing down what both partners do and do not want in their marriage is enough to help them keep their intentions focused.

So, what is a post-nuptial agreement, why would you want one, and how do you get one?    Examples of when people may decide to pursue a post-nup are if there has been an affair, an unwanted pregnancy (or an inability to carry a child to term), a bankruptcy or foreclosure, a significant inheritance, a drug or alcohol problem, or any other unexpected change in the direction of the marital relationship, the post-nup is a tool to help the parties talk about how they want to handle the new situation together as a team.  Circumstances which might otherwise destroy or end a marriage can be used to the spouses’ advantage as a way to strengthen their partnership.

The parties may use a therapist or other counselor to help them work through the emotional aspects of their situation, or their lawyer/mediator.  Once the major questions are answered (are we staying married? Are we trying again to: have children/get sober/ adopt/ buy a house…) then the lawyer can help formalize the agreement into a binding document with objectives and consideration and consequences with which both parties are willing to live.

Just as no two business partners should go into a new venture without a written understanding of the expectations between them, a formal written agreement between spouses helps to alleviate some of the guess work and anxiety of an unknowable future.

What We Love:  Pre-nups and Post-nups are both ultimately just communication tools between spouses, and no one needs more communication than spouses!

Ease your way into things..


A man once had a cat that he loved very much.  When he went away for a six-month work assignment, he left the cat in the care of his brother, promising to call every week and check on the status of his beloved cat.

All went well, until one week when the man called and asked about his cat. “The cat died,” the brother reported.  The man was shocked and saddened.  He reprimanded his brother, saying “that’s no way to tell me that my cat is dead. I am completely unprepared for this terrible news.  You could have warned me over time.  You know I call every week and ask about the cat.  You could have said ‘the cat is on the roof and we can’t get him down.’  Then on the second week you could have said ‘the cat fell off the roof and we took him to the hospital – he is in critical condition.’  Then, by the third week, when I called and you reported that my cat did not make it, I would have been better prepared for the news.”

The brother apologized, “You’re right,” he said. “I am terribly sorry.”

“That’s okay,” the man replied.  “Anyway, how’s mom?”

“Mom’s on the roof.”

Remember this joke from “Apocalypse Now?” It is an old but valuable story about the power of timing in making difficult news more (or less) palatable.  Too many times difficult news is presented to family and loved ones as a bombshell, and not in a way with which the recipient could easily cope.

If you know you are getting a divorce, but you have not told your friends and family, you might want to take a few moments and consider that how you tell them, and the order in which they receive the information, could have a large impact on the amount of support they are able to give you going forward.

And, even more so any minor children living with parents who decide to divorce.  A child who wakes up one morning to be told that life will be radically altered with no warning can suffer from a form of Post-Traumatic Stress Disorder for years afterwards.  If the child was only ever told “we are a happy family,” and then one day that family dissolves, such a child may have a difficult time trusting the idea of happiness in the future.

We all want to shield our children from pain as long and as much as possible, and this includes emotional pain.  But a child who understands something about their parents’ journey from married to divorced might better be able to incorporate that process into his or her own thinking.

If you plan to have an alternate weekend visitation schedule, for example, maybe start practicing that – interspersed with full-family weekends – before it is ordered by the court.  If one parent will be looking for a new apartment, have the child come along and “apartment hunt” with you, so that he or she knows it will be a place that you will both enjoy.


That way, when the divorce is final and the parents are ready to move on, the children might also be ready for those big next steps.

Most states have a mandatory waiting period from when divorce is filed until it can be completed.  Consider using that entire period of time to help your children get up to speed on the final outcome.   One way to begin might be with a joke, and then the idea of “our marriage is on the roof.”

WHAT WE LOVE:  You have the power to help your loved ones adjust to your new situation with you. The process can be as gradual as you make it.

Keep your eyes on the road ahead..


What divorce does (and does not) solve

Well, the truth is, it only solves a few specific things.  Divorce does not make you more (or less) organized, motivated, sober (or carefree), responsible or irresponsible.  It might, for a while, increase or alleviate a few of those traits.  For example, if you are an ordinarily organized and responsible person, you might spend a few months during and immediately following the divorce process feeling completely out-of-sorts.  But, once you settle back in, you will likely revert back to your true reliable self.

If you think that divorcing the lump on your couch and replacing that lump with someone new will change your life; the truth is that it is not the divorce which will make that change for you. Only your own will and determination can get you to change old patterns.  So often when I have the opportunity to meet my client’s new significant other or spouse I am shocked that they were able to find such a close replica of the one we just finished divorcing. 

If you have a drinking problem, for example, not a full-blown “I need to get to a meeting” alcoholic, but someone who wakes up too many mornings thinking, “wow – I drank more than I meant to drink,” you might be blaming your spouse, or your divorce.  “As soon as we can sell this house and get separated from each other, I won’t need to go out as often.”   While that may be true, you might also be surprised to find yourself a year post divorce drinking comfortably in your own apartment and waking up too many mornings still feeling the effects of the previous night.

Similarly, people do not change in the course of the divorce process itself.   If you are divorcing a bully, that person will keep right on bullying you every step of the way.  In fact, in a last ditch effort at getting her own way, she might be even more ferocious now than ever before.

If you are divorcing someone who cannot keep a job, then don’t expect him to suddenly stay gainfully employed, just because all of the lawyers and judges say he should.  He knows he should have a good work ethic without being told.  If he could have gotten it together, he would have done so by now.

So, what is the value of the divorce? If it does not fix you or your spouse, why go through all of the work and cost and hardship?  Because of the few things it does solve.

1.  You cannot “fix” another person.  But, once you are divorced, you are no longer responsible for what is wrong with that person.

2.  You have a unique and precious opportunity to fix your own life.  This is your true chance to change old habits and patterns; get yourself off of that couch; stop dating lumps; drink less; or escalate your career.  Whatever it is that you have been thinking you might want to change about yourself, divorce is that clean slate to make new choices for the life you are just beginning.

WHAT WE LOVE:   You are your own best project, and with one fewer person in your life, there is that much more time and attention for you.

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