The Importance of the Decision to Divorce

gandhi“Thanks Mom & Dad – You Just Ruined My Life.”

Would you rather: hear that sentence and know it is false? Or never hear that sentence, yet know it is true?

That is a choice parents face all the time. Whether it comes to allowing kids to attend certain parties or concerts, paying more for the label on a piece of clothing, or monitoring the amount and content of their screen time.  Parents know that just because their decisions are what is best for the child does not always mean the child sees it that way.

And so that’s how it is with the decision to divorce.  We all want what is best for our children.  Until recently societal mores in America dictated that what was best for children was a two-parent home, regardless of the dynamic between those two parents. What we have come to learn, as a culture is that children who grow up in a hostile environment are more likely to be hostile, depressed, or anti-social adults.

The reason that governments put divorce laws in place is not to encourage single-parent households, but to improve the quality of individual marriages.  It is in the best interest of our country for the people who live in it to raise their children in relatively happy, healthy households. If that can be accomplished with two parents in the house; that’s great.  But if the choice is between the number of people in a household and the mental health of the people in a household (quality vs. quantity), we have chosen mental health and well being as the more important factor.

Children, particularly adolescents and teenagers, are always looking for the most “normal” persona. The thing that allows them to feel the most “like everybody else.”   If they feel that having two parents living in their home makes them more likely to fit in with the crowd (like going to the party “everyone else is going to,” wearing the same clothes, or watching the same movies as “everybody else”), then the idea of a divorce may feel socially devastating to them.

So it is part of the job of responsible adults to decide in advance whether their children are better off being raised in the family that exists, or making changes that are designed to improve their children’s lives; even if those changes include some painful aspects.  Another part of that job is being conscious of how the children will perceive the decision.  One angry and tearful parent announcing that the family is now abandoned might leave a different impression than two calm adults laying out the future plans.

Two adults who can work together to formulate a divorce plan have a chance at keeping their children on an even keel during – and (more importantly) after – the divorce process.  No matter how hurt, annoyed, fed-up, or furious you may feel is not the child’s fault or domain.  Give that part to your therapist, family, or strangers on a bus.  Wait and tell your children what precise plans the two of you are making to maintain what is good and improve what is bad in everyone’s lives.

Examples include, “Daddy’s new apartment building has a pool and you can invite your friends there,” “We will both still be at every baseball game/dance recital/poetry reading,” “We both believe that things are going to get a lot calmer around here.”   Obviously, you can also explain the details of the parenting plan if you have one – weekly dinners and alternate weekends is a popular visitation structure.   Or, you can just promise to let them know as things develop.  “We don’t know the details yet, but as we do, we promise to tell you together,” frequently works well.

What We Love:  It is easy for a parent to know that your children deserve the best choices you can make.   It is trickier to know that it is true whether the kids like it or not.

Are you Ready or Hesitant?

divorcecompromiseMarriage affords people certain benefits.  There are compromises and pay-offs that married people balance and weigh all of the time.  It might actually be impossible to spend decades living with another fully-functioning adult and never get on each others nerves.  We are talking about marriage between human beings, after all.

Divorce happens when those compromises no longer make sense.  When the cost/benefit analysis suddenly looks like all costs and no benefits to one or both of the parties.  If it is both parties, the divorce can go pretty smoothly.  If only one partner’s scale has tipped to one side, it can be a much more difficult time.

When one spouse has spent years feeling over-used and under-appreciated, the other partner probably has no idea – whether or not they have been told.  It is a very rare person who would intentionally take his or her spouse for granted with no thought of repercussion.  So, we frequently see one partner who is anxious to get out, and one who is completely blind-sided and dumb-founded.  Let’s call them “Ready,” and “Hesitant.”

Ready will frequently try to make any compromise imaginable, just to make the divorce happen sooner. Whereas Hesitant might feel self-deluded into thinking that with enough time and effort Ready’s mind will change and things can go back to “normal.”  Hesitant might ask to try couple’s counseling, vacations together, or a temporary separation.  And, while any of these suggestions just feel like a waste of time to Ready, Ready might agree in the hopes that it will lead to an eventual divorce.

An angry Hesitant might use the opposite approach. In an effort to stay locked into each others lives, Hesitant might want to find every reason in the world to fight.  People can fight over kids, custody, money, pets, assets, debts, and even whose fault it is that we are getting a divorce in the first place.

Hesitant tends to rack-up attorneys’ fees in an effort to prolong the process.  Ready tends to give away his or her rights in the hopes of getting it over and done quickly.  Neither approach results in the best possible outcome, because they are both making decisions with their emotions when logic would be a better guide.

So, how can Hesitant and Ready put their feelings aside and make the best decisions for themselves and their families?  There are many possible solutions.  Using a trusted advisor, such as a neutral mediator, a second-opinion attorney (also sometimes called “Review Counsel” because it is an attorney who reviews another lawyer’s work), a financial advisor or a therapist can help bring an objective opinion to the process.  Ambitious parties can do some of their own legal research on line and try to get a sense of what Judges in their jurisdiction typically order in cases like theirs.  Or, waiting a few months after the mandatory waiting period, just to make sure that everyone’s jets have cooled can sometimes have the surprise effect of turning Hesitant into Ready.

What We Love:  There is no state that mandates a time in which you must divorce.  Once you know where you are headed you can take as much time as necessary to make sure that everyone is making the most rational decisions they can make.

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!

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