Welcome to my fall newsletter and blog. I’ve concluded, having practised as a divorce lawyer for 36 years, that family law and divorce matters are 90% emotional and 10% law. Also, when a case is called complex, I believe it’s the emotional part that is the complicating factor, rather than the law.
“WOMAN REJECTS $1BN DIVORCE SETTLEMENT AS JUDGE WARNS TRIAL ISN’T GOING TO BE PLEASANT.”
I came across the above headline recently on Facebook. It drew my immediate attention. New Yorker Harry Macklowe, 80, offered his wife Linda, 79, almost half his fortune to settle, but Linda wanted to go to Court. Manhattan Justice Laura Drager warned the couple: “Your personal lives, business assets, everything will be displayed for everyone to see, and… “I am concerned about what your expectations are for what this trial is going to be like. It is not going to be a pleasant experience.”
Linda is believed to have been angry due to Harry’s leaving her for a woman 20 years younger.
This case is a graphic example of my theory that divorce/family law is 90% emotional and 10% law. Hence lies the complexity, and along with that, the cost,
Experts can be retained for complex financial issues: business valuators to value a business, real estate appraisers to value real estate, and accountants to assess self-employment incomes. Divorce lawyers are experts in the law, however often have received no training in emotional dynamics. Yet we must conduct our cases with full awareness and ongoing sensitivity to the constantly changing emotions at play.
The collaborative process recognizes this, and mental health professionals can be retained as part of the multidisciplinary team. However, they are not always retained by the clients. Collaborative and mediation train lawyers to put on a ‘different hat’ and to explore and be aware of the emotional underpinnings of their cases. They must explore the “whys” of their clients’ instructions, rather than simply take instructions.
Even if mental health professionals are retained, family law lawyers must still conduct their cases with a kind of emotional expertise and awareness that is to be distinguished from therapists’ expertise.
Also, legal fees will increase exponentially with the “emotionality” of the case. Examples include:
- Wife finds out that her husband is having an affair with his secretary. She hires a lawyer stating: “I want to destroy him!” In this case it’s the duty, in my view, of the wife’s lawyer to explore with her the underlying reasons for her instructions and not to simply ask for a huge retainer to carry them out.
- When a husband can’t let go emotionally of his wife, therefore allowing ongoing delay in his case to the point that Court litigation must be commenced because the legal limitation period is almost up.
An example where legal fees did not escalate is the following:
The parties had had a lengthy common law relationship which had broken down irretrievably. They retained me as their mediator to help them negotiate a separation agreement. Both parties acknowledged that they were hurting emotionally. It was essential that I was always cognizant of this emotional dynamic, as it sometimes was “the elephant in the room.” I used caucusing (i.e. meeting with each party separately), as an effective way of addressing, separately each party’s emotional pain. At the same time, both were determined to be respectful of each other. They worked at resolving the legal issues in as positive and constructive a way possible. As a result, they reached solutions they both could live with. As well, their fees were cost-efficient.
One might erroneously conclude, following from my 90/10 theory, that a therapist and not a lawyer should be retained to help parties resolve their matrimonial matters. The problem with this is, while emotions color and often inform the legal matters, the issues which must be resolved are legal issues, requiring legal expertise. They include the issues of child support, spousal support, marriage contracts (“pre-nups”), distribution of property, etc.
Also, emotion directly impacts on the legal issues. For example, in the case of the wife who says she wants to destroy her husband. She is legally entitled to spousal support. However, if she destroys her husband financially, she will get nothing!
I will be continuing to write to you about this subject, as it is in my view a phenomenon that needs to be explored in depth. Stay tuned for more to come!
Until next time!
Anne Freed holds a BA (Honours Sociology), JD (Juris Doctor, Law Degree), Master of Laws Degree (LL.M.) in Alternative Dispute Resolution, Advanced Training in Mediation, Arbitration and Collaborative Practice, Certification in Collaborative Practice
© Anne E. Freed, September 2017