Walt W was both the most famous divorce attorney of the seventies and my father’s good friend. He literally wrote the text on the new “no fault” divorce in California, had a chauffeured driven Rolls Royce bring him to court, only hired attractive women associates who called themselves “Walter’s Angels,” and strutted about the court during divorce trials displaying a brilliant arrogance that somehow won over the juries.
He also died before he was fifty, to everyone’s shock, in the midst of a career that only seemed destined to soar to even greater heights. No one had even known he was ill. The fact that this seemingly public man would keep such a personal danger completely secret perhaps shows a deeper personality than that of his public persona.
And it was this deeper man who would take me aside, as a beginning attorney, and talk about the dynamics of the contested divorces. Usually over drinks, for bars were a favorite place of his, he would stare at himself in the mirror behind the bar and share his wisdom.
“There are three types of divorce and three types of spouses, son.” He was only fifteen years older than I at the time, but I was always the “son.” His premature gray allowed him that, I suppose. He lit his cigarette, glanced at me, and went on. “You have the spouses who will seek vengeance no matter what. They use the divorce to punish the other side, use it to show how angry they are and they make a lot of money for me. Love those clients. Or defending against those clients. Buys me good whiskey.”
He would try his good whiskey, then continue. “The vengeance seekers make up a minority I admit. Most can’t afford it. Or calm down. Maybe ten percent of the divorces are like that…but make up 70% of my income, I suppose.” That made him smile more.
“Then there are the totally trusting and good natured couples. They trust each other. They are getting divorced by mutual consent, don’t feel they should be together, but no one is very upset. It’s a business deal. Hate them…make me no money at all. Just writing a contract. That makes up another ten percent…”
He would lean back, stare at the door hoping a good looking woman would come in, then turn in his seat and look at me directly. “Then you have the majority. The eighty percent. The ones who are upset, emotional, but don’t want to necessarily go to war. Most people….but they can make me good money as well.”
I raised my eye brows which is about all the comment I could ever get in with Walter. He did not leave time for others to say much. “You see, in every marriage there’s a giver and a taker. Someone who demands and someone who complains a bit and gives in most of the time. Always.”
“Yours, as well?”
He laughed. “Which one?” He blew smoke in the air. “I think…I admit… I was the demander all the time, OK? You got me. But, anyway, there’s this fact of life…one gives the other takes. And when the time comes to divorce and the time comes to decide about property and custody, there is this tendency on the taker to assume the giver will keep giving…you know, giving way on any dispute as to property or whatever. And sometimes that happens. Sometimes it doesn’t…cause the world can change when you file the divorce papers. The world can turn upside down…” He smiled at his drink and paused a little…”…and you get two takers…or…and this is interesting, my boy..”
He leaned towards me. “The husband who used to demand now gives in. The husband who ran the marriage now wants to just run out the door and avoid the fight so much that he throws everything at the wife just to buy peace. Gives way on everything to get it behind him…just to get peace. And you know what?”
“What?”
“It seldom works…” He finished his drink. “It’s blood in the water, boy. It increases the fighting instinct, increases the distrust…doesn’t lessen it. Not always…but almost always. Makes that member of the eighty percent go to the ten percent who go to war.” He laughed and clapped his hands softly. “It’s human nature. Give way too easy and it encourages more fighting, not less. You have to speak loudly and carry a small stick…” He laughed at his own humor and ordered another drink.
It took me another few years to see a perfect example of how right he was.
It wasn’t even a full scale divorce. That battle was already over. My client, who was required to pay alimony and child support, had just lost his job, couldn’t find a new one, might have to move out of state to find one, and needed to negotiate with his ex both for a temporary reduction in child support and visitation rights if he moved. “Not going to move out of state if I can’t see my boy on his vacations,” he told me grimly. “I’ll stay unemployed for a year before I do that…”
The divorce had not been easy and had cost him his entire reserve. And he had not been docile in that fight, hitting hard, for he had been the “taker” in the marriage, had been the one in charge. But after the dust settled, and he saw how upset his son was, he changed his approach. He desperately sought to keep some type of good relationship with his ex since he knew that both parents were needed for his son.
We both knew that child custody was probably the most emotional aspect of divorce settlements, the one that most often led to infighting and attacks. And the victims were the children as often as not, as they saw their parents often use custody rights to punish the exspouse.
Their divorce had been especially brutal, with the exspouse’s angry father spending much money to pay very aggressive attorneys. He had the resources and the anger, trying to “protect” his daughter. We did not want this new custody issue to spark another round of expensive court fights. For his son, my client was going to approach this differently.
To her credit, the exspouse, Helen was her name, had finally told her father to ease off and stop provoking fights during the initial divorce action. She cared about her son as well, saw that he needed his dad and saw that her father was playing out his own agenda. Indeed, she fired the warrior attorney her father had hired, made a pretty reasonable settlement offer which we grabbed and all had gone well for the last year…now this.
We knew dad was waiting to pounce again, to claim he had been right all along and my client…Jim…was a bum to be crushed. We knew that she was not having an easy time. Divorce is always expensive, always increases the costs for both families. And we knew her dad was helping her out and thus had a lot of clout should he insist upon renewal of war.
In short, we now had two givers who had been as reasonable as they could with a dad who was willing to pay for one to be a taker. That’s how Walt would have put it, with a cynical smile. He would have said it was a time bomb.
Jim and I agreed that we needed to be careful and decided to make an offer that demonstrated such good faith that dad would have nothing to argue about. Jim made an offer that if his salary increased, the entire increase would go to her plus he would pay her back with interest for any reduction before the job offer and would pay all the costs of the son to visit him at his new locale. About a week after we sent that offer to her, before she responded, Jim received the job offer, did get a raise, and we promptly advised her. Her own economic position had been radically improved since she was getting the entire raise, there would be no hiatus in alimony or support payments, all should have gone smoothly.
Wrong.
A month later we were in court arguing about the change in joint custody the move would require, the warrior attorney back on her father’s dime, and she refusing to even speak to Jim, not making eye contact, bristling with anger in the court room. The hearing was long and stressful but we won the right to have the visitation we wanted when Jim turned to the judge on the stand and simply said he would stay unemployed and unable to pay alimony if he had the choice between the new job and reasonable rights to see his son.
He spent a lot to get the result he needed…and she did not get any increased alimony from his raise since now we contested any increase in alimony and won on that. In short, she lost. And the economic benefit of the raise, at least a lot of it, ended up with the attorneys.
It was a month later when a friend of Helen who I happened to know, gave me an inkling of what had happened. Her dad had convinced her that we would not have offered so much to begin with if this was not part of a plot to move full time custody of the child to the new state. “Why else offer so much,” the dad had said, “if this was not part of their long range plan? You know Jim. He never gives anything away…Today you get the increased support. In a year you will only see the boy on his vacations.” Terrified, convinced that she was fighting to keep her son most of the time, she went to war. She told her friend she knew Jim and he never made a reasonable offer without bargaining first. Her dad must be right.
Walt was dead by then. But if he was looking down, he must have chuckled.
The lesson? Walt always right? Always bargain hard no matter what? Never make a generous offer? If you offer too much you appear duplicitous…or weak…and both are blood in the water?
I do know this. The spouse who tries to use money to buy peace has to buy that peace very, very carefully. You often don’t end up buying peace. You are, instead, often paying big money to buy defeat or war…and never know which.
So…does that mean reasonable settlement offers…indeed, generous settlement offers…cannot ever be made? Does one always have to strut and growl to get the fair deal? Can’t one offer what one wants to without sparking the explosion?
I had another experience long after Walt had died which I think points to the right way to do it.
The husband was feeling guilty. I’ll call him Bob. He had had an affair, now over, it was discovered, counseling failed, she filed for divorce, he just wanted to put it all behind him and get on with his life. His guilt led to offers of property that were more than generous…they were self destructive. She not only was going to be offered most of his community property (he was entitled to one half of all community) but he was going to offer parts of his own separate property. There were no children, she earned almost as much as he did, and I suspected that Bob was not just trying to buy peace, but trying to buy forgiveness.
I could almost hear Walt laughing as I looked at the scrawled offer on Bob’s stationary that he wanted me to make. He had written it during a sleepless night. He thought that if he offered it, he could get a property division by stipulation, no contested hearing, no testimony, all over in a few months.
I looked up. “You know, Bob, we don’t have contested divorces. Your affair is irrelevant. Won’t be a matter of testimony. All we argue about in the divorce courts are custody and money. Since there are no children, all you are going to argue about is how to divide the property up fairly…why you are getting divorced will be irrelevant.”
He blinked rapidly. “I am sick with what I did. I need to make amends…”
I leaned back in my chair. “You want to buy peace? This won’t do it. If she is angry, money will be an insult. This could result in her demanding yet more…she will sense your weakness. If you are buying absolution, make a donation to charity or do some good works…you can ask her forgiveness without trying to buy it…”
He didn’t like hearing that but stopped himself from responding angrily and stared out the window for a few moments. We were old friends. “I don’t want her to suffer for what I did…” he said softly.
“She already has and offering her too much does not solve that. Look…” He turned to me as I paused before continuing. “Look, if I ran over your dog and killed it, and offered you ten thousand dollars because I felt so guilty, would you feel better about me? Or would you still be shattered the dog was dead? Money is not what that was about and not what this is about…it’s just an easy way to make you feel you are doing something to make it better.”
“Everyone needs money…”
“True, but what we are dealing with here is not her wanting or needing money. This is not a business deal. You are not providing money for a child needing college tuition or some such thing. What we are dealing with here is you knowing she is hurting, feeling guilty and trying to feel better by throwing money at her…simple as that. And it won’t work…”
“She won’t want the money?!” He half rose from his seat.
I paused again and waited until he calmed down a bit. “It won’t make her feel better. Indeed, may make her even angrier knowing you are trying to buy peace…she’s smart…she’ll figure that out. And…that’s what you are doing. It hurts inside of you…you want to stop the hurt with money. I don’t think it will work and may just make it worse…”
He stood up and paced around the office. “I can’t stand the idea of us going to court, arguing about money or whatever…can’t stand even thinking about this. I figure if she gets more than she can possibly hope to get, she’ll just want to put it behind her as well…”
“If she wants to put it behind her, the money won’t make a difference so long as you are fair. If you try to short change her…”
“I wouldn’t!”
“I know…but if you did, it would cause a fight. But if you are fair and perhaps a little more than fair, the money won’t make any difference really one way or another…but pay too much or too little and it might.”
“She can’t fight if I offer her too much…”
“She can define too much differently than you…or just become emotional and want to hit back…or assume you hiding something and that’s why you are paying so much so quickly….”
“She couldn’t think that…”
“Of course she can. Trust was destroyed already, wasn’t it? Of course she will question your motivations…the best she will think is you are trying to buy her forgiveness. That angers most people. I think it will anger her…”
He sat down. He looked at his hands clasped in his lap.
Watching him, watching my friend in such agony, and knowing well his wife who was probably in equal agony, I realized the real problem. He was hoping for things from the courts that are simply not there.
Courts are not meant to buy peace. They are not meant to create feelings of relief or reconciliation. They make decisions based on justice, ideally, or as close to justice as the law and the judge can provide. There are usually winners and losers. There is drama, excitement, tension, surprises, and at times success and defeat…but the times you see a court provide the parties with mutual satisfaction are few…very few. That’s not what courts were provided for. It’s like going to a baseball game so that you can see the teams tie. It’s not what baseball is for.
Now, mediation can sometimes achieve mutual reconciliation. Can bring the parties together to a common mind. But once in court, unless the parties agree to mediation, you are in a place where someone is going to be pushing to achieve what they want and if one side suddenly gives up the fight…well, in a baseball game you don’t see the winning team agree to a tie if the losing team gives up, now do you? And you don’t go to a baseball game to achieve peace or amends.
Wrong forum. Wrong ethos. Wrong goal.
Solution?
- If there is a dispute and one wants a fair outcome, try for mediation. That is an excellent test of the other’s party’s state of mind.
- If the party refuses to agree to mediation or refuses to make a fair offer of compromise either then or in the mediation, face that fact, figure you are not going to buy peace by throwing money at the person, and figure that showing some muscle may just make the other person back down and create a settlement…not based on good feelings but equality of power. Get good advice on the law on dissolution of marriage, get a good lawyer and CPA, and proceed with calm determination.
- And if one wants to establish an aura of good will, cooperation, and resolution…well, a court of law is seldom a good place to do it. Not only is everyone already geared up for combat and distrust, but there is a lawyer advising the party on the other side…who may just be the latest Walt to get a law degree and will advise his client to respond to the offer with even greater aggression than before.
Bob listened to me and toned down his offer to what was fair and a little more…and the matter settled relatively quickly. She didn’t want a fight either. And because he still felt terrible, he took the money he would have paid to her and made a donation to a charity they both had loved, writing a note to her saying that he was doing it and she need not respond.
And she did not respond.
But four years later they happened to meet at a friend’s home. She was remarried, Bob was engaged. Helen told Bob that the gesture had been noted by her. She said it didn’t lessen her anger and sorrow…but was something that still made her feel better. She told him it was, in effect, the last good thing their marriage had accomplished.
And that seemed to give Bob some resolution to his feelings of guilt. Or, as he told me, it seemed as close to resolution as the circumstances could allow. It gave him some peace.
Certainly more than court could have…