Examples in Creating Value in a Family Dispute
For the more math-savvy of my (admittedly) limited audience, this post will detail the math and finances behind not attempting to get absolutely everything you want out of a dispute, but to settle for many of the things you want most. Obtaining a total victory is, in many ways, a difficult pill to swallow once you know the total cost of victory.
Starting LineLet's take an example to ground this into the real world. Annie and Bill have decided to divorce. There is nothing to suggest either party will exhibit uncommon animosity, so we will not worry about that in my hypothetical.
Annie works Monday, Tuesday, Thursday and Friday in loan approvals at a credit union. Bill works Saturday, Sunday, Wednesday, Thursday and Friday afternoons as a steward at a fine dining restaurant. Annie makes $55,000 annually, Bill makes $38,000 annually. They have two children who are both healthy and were both active parents.
Annie wants back three marital assets: Her mother's silverware (a wedding present), the family dog, and the 2010 Honda she drives. Bill wants back three assets as well, the apartment's couch, the family dog and the 2007 F-150 he drives. The couple rented their home.
Where can we find agreement?If I were presented with this hypothetical and either Annie or Bill were my client, I would suggest the following as a child custody settlement immediately: Joint parenting time with the children where Annie has the kids Monday, Bill has the kids Tuesday, Annie gets them on Wednesday and Thursday, Bill has them Friday overnight and then Annie keeps them through Tuesday.
Why? We know the two easy days are Annie on Wednesday and Bill on Tuesday. On Monday, Bill just worked a whole weekend restaurant shift, so it makes sense that he would need to sleep in so he should not take his kids to school in the morning. On Thursday, Annie already had her kids on her day off, and she should take her kids to school because again, Bill worked that day. On Friday, we suggest Bill take the kids overnight because we know he has the evening free, and Saturday morning free.
Most importantly, one of the attorney's foremost duties is to minimize costs. We can make this common sense plan in an afternoon and present it in both mediation and to the judge, perhaps in a single appearance. This means that the marital finances aren't taxed by the attorneys standing by and allowing the parents to argue. We look for common ground rather than encouraging division.
We can solve the marital assets too. Annie ought to get the silverware and her car back, Bill ought to get his car. The value of his car is low at this point, not more than $5,000. Annie's Honda is worth a similar amount. Since Annie's car is a little bit newer, if I represented Bill I would ask for the couch, but more on this if I represent Annie in a moment. I also think it makes sense for Bill to get the dog because his work naturally has him working evenings so he can care for the animal in the mornings.
Again, we can allocate the cars without much trouble, we can allocate the silverware fairly easily, and we make a good argument for the dog. If everyone is reasonable, the above divorce cost under $2,500.
The Expense of Being UnreasonableLet's say I represent Annie. My duty to Annie is to inform her that she has a reasonable case for the furnishings and for dog because she is going to be paying maintenance. Let's say Annie takes this to mean that she needs to get the furnishings and the dog because she will end up paying Bill a few thousand a year, and "he can buy his own, right?"
Fair enough. I will encourage my client to settle and avoid paying me, but if her mindset is to have me fight over these things, I will do what I'm told. If I have to go to a hearing over the dog and spend a morning articulating how the companionship of the animal will teach the children kindness and social graces, and they will learn responsibility for other living things, this will take two hours. If I further write pleadings about how the dog should remain in its current environment, that will take another hour or two. If I have to go to another hearing for ruling, this is another two hours. Just arguing over the dog, we have spent enough legal fees to purchase a designer puppy.
If we argue over the furnishings similarly, and I state that these furnishings were chosen to compliment the existing apartment and the preference to have subtle tones near young children to avoid excitability, then we will also have a short court appearance. We could have a briefing about the children's need to be around muted colors to encourage focus, and if the hearing got hotly contested, a developmental psychologist could give testimony. This is another $3,000 in legal feels and perhaps expert witness fees on top of that.
RealityIn reality, three mostly-agreed divorces could be accomplished for the price of one hotly contested divorce. None of these examples I've chosen are outlandish. Some outlying attorneys fees for dog custody have reached five figures in Ohio. Illinois fees of similar amounts have not crossed my desk, but the emotion of separation leads people to make decisions that are not always fiscally reasonable for the sake of preserving the status quo. Not only should your attorney advise you on your rights, but your attorney should also help you make the best decisions by guiding you through your controversies to encourage your family to grow through the experience.