How To Settle A Divorce On The Back Of A Napkin

I love settling divorces on the back of a napkin. I often do it at the beginning of the divorce process. I can cut through the temporary issues, the emotional struggles, and re-work the financial picture from one of woe to one of the beginnings of a financial future. I have a knack for it. It's also the code-word I have for taking a seemingly overwhelming divorce predicament and pulling a solution out of its true essential core.

Often in doing this, I "rob myself" of hundreds of thousands of dollars in profits. If clients want to focus on irrational wild-goose chases that will elongate the temporary litigation turmoil, I say, "Halt!" Some divorce attorneys would say "fine" or "okay" to a client's emotional request. I don't. Here is one example that shows why this approach is the better path of wisdom:

A client called me the other day. We'll say that the client was a "he" and that "his" name was "Joe." There, now the innocent are protected.

The phone call lasted 40 minutes and thus, cost my client $165.00 (my hourly rate is $250.00 per hour). Had I allowed it, the phone call would have lasted for 2 hours and cost my client $500.00. Why would it have lasted for 2 hours? Because my client was angry, frustrated, being financially bankrupted by things and people beyond his control, hurt, sad, lost and resentful.

Why was my client calling me? Because he was financially drowning because his wife had stopped contributing to the mortgage months ago, because the house (which the wife dragged her feet on listing) hadn't sold yet, because he was paying all the carrying costs on all of the credit cards (that the wife had walked away from), because his wife had broken into the home and taken the washer, dryer, refrigerator (after emptying out the food and leaving it to waste), and all the expensive furniture, and because, therefore, he wanted all of this stopped. As "Joe" said, "We've gotta do something!"

It seems reasonable enough. Stop the insanity. There's only one problem. In the Court's eyes, this isn't insane, this is litigation. And, as far as the Court is concerned, the only time that the Court should pay attention to your case prior to a trial is when you file a motion.

So, I discussed my client's motion options with him. A motion would ask the judge to make her pay her share (of the mortgage and credit card carrying costs), and would ask her to return at least the refrigerator.

"Okay, let's do it!" most of my clients say at this juncture. But, I am not sharing my divorce wisdom with my clients if the motion conversation ended there.

So, I also discussed with my client that his wife would file a cross-motion, and in her cross-motion she would ask for a ton of alimony (even though she is healthy and can support herself and there are no children and it is not a long-term marriage and she moved out months ago). Sounds ugly, right? But, usually, my clients are not deterred. Having never gone through the divorce litigation before, they believe that the judge will see the real truth behind the facts, and see the true character of the adversary, and "do what's right." I remind my clients that judges don't care about character when dealing with finances. "Oh," my client says, "even if her finally irresponsibility is bankrupting us?" "Yes," I say, "even if it bankrupts you."

I continued on. I told my client that judges usually decide motions in a way that makes both people miserable - so, in all likelihood, the judge would temporarily order the wife to pay something to the mortgage and credit cards, and would order my client to pay temporary spousal support to the wife.

Would this bother the judge? Absolutely not. The judge would see this as a very fair and equitable temporary decision.

Would this bother my client? Absolutely yes! Why? This "temporary" decision would not only add insult to injury but would put my client into such a financial bind that he would be forced into a divorce agreement prematurely and with "unfair" terms.

Judges know this. Some judges even intentionally enter temporary orders that financially prejudice one side in order to force that side to settle. Is this a correct use of judicial power? No, but it accomplishes the judge's goal of getting cases settled quickly. And, in the politics of judicial promotions, having a "fast docket" - one that doesn't have "old" cases on it - will get you kudos.

Back to the story. So, this client, now armed with not only information but wisdom decides not to file a motion, but asks, "So what do we do?"

Here is where the "napkin solution" comes into play.

First, we deal with the house. The house that's listed for sale is already in the red, and my client thinks that he shouldn't lower the price (per the realtor's recommendation). I point out to him that he should lower the price to zero if that's what it takes to get the mortgage payment off his back. It doesn't matter because the house is going to be a short sale anyway. It's a funny thing. We are all wired to try to get as much as possible for an asset, without truly considering the main objective. In this case, the objective was not to make money, but to make the mortgage payment go away. And, in making the mortgage payment disappear, we would cause one more disconnection between my client and his future-ex-wife. That disconnection would further encourage a simpler settlement (because the less ties that people have left with one another, the simpler the settlement becomes).

"Great!" says my client, having never considered that viewpoint before.

Second, we deal with the age-old "When will this be over?" issue.

When a client says, "When will this be over?" what they really mean is, "I'm exhausted from fighting, from the stressful finances, from the emotional churning, from the focusing on how to get this insane person to stop hurting me!!!" In truth, there is no real answer to "I'm frustrated." In truth, my purpose is to provide a goal, a strategy, and a suggestion to focus on those rather than the frustration, and in so doing, to gain a little peace and happiness.

In addition to reiterating the obvious ("it'll settle when the two of you agree"), we come up with a strategy that encourages my client to get on with his life. After all, his life will not drastically change when the judge bangs the gavel and declares the divorce final. His life will essentially be the same - the same job, same size house, same clothes, same friends, etc. We decide not to get sucked into the tit-for-tat back-and-forth that is so expensive and so common (and accomplishes nothing), and essentially to do as little litigation until the next big court date, because none of that expensive posturing will change what happens at that court date. We'll take the biggest swing we can at that court appearance, and then make further decisions then. In essence, if his wife doesn't completely change her stance and put a reasonable settlement offer on the table, then we'll bury her. We know what our "line in the sand" is, and there's no point in churning the emotions about it, nor running up an expensive attorney fee during that churning.

I know how this case is going to settle - and I've told my client that. Was he thrilled with it? No. But, he is now armed with a settlement picture that he can start accepting. It's not his ideal settlement (but his facts aren't ideal under the case law), but it's a good settlement. It'll get the divorce done, with him paying less money in attorney fees than he would if he went to trial and with a better result than he'd likely get at a divorce trial. That's the definition of a good settlement.

Even though I know how this case will settle, it won't settle tomorrow. Why not? Well, it won't settle tomorrow because his wife and his wife's attorney aren't ready to stop fighting.

I'll have to bury them first. Then, they'll listen to reason.