“Sweetheart, who’s in bed with us tonight?” It’s one o’clock in the morning and it’s my husband, Patrick, asking. Now, before you start thinking we have that kind of marriage, you need to know that this is my sweet darling’s way of asking which of my clients’ divorce cases is keeping me awake.
About 11 years ago, our marital bed was overloaded with unwanted occupants. Sleep was tough to come by as I stressed over the despair, anger and contentiousness of the couples I was dealing with. The theme was usually the same—a seeming inability to stop fighting… over the trivial (like who got the television), the irrelevant, (like who behaved more badly), and the irreconcilable (such as how each was going to get more than 50% of their children’s time)…in order to focus on how to end their marriage equitably and get on with their lives.
Finally, one night my husband asked the question that transformed how I would handle divorces from then on: “It must cost these people a fortune in attorney’s fees, how do they afford it?”
“They have a really tough time,” I replied. “Many reach the end of their divorce owing thousands of dollars.”
“Owing you?” Patrick asked incredulously. “Now I know why they keep on fighting… they are doing it on your nickel, not theirs. How do they ever pay you off?”
That’s when it hit me. Like many of my colleagues, I deferred collecting most of my fees until the end of the case. To be sure, I’d collect a retainer up front, but would let my subsequent invoices for additional fees, once the retainer was exhausted, go unpaid. I rationalized, compassionately, I believed, that I shouldn’t insist on payment at such a difficult time.
Not unexpectedly, many clients took advantage of my forbearance in the midst of all the chaos in their lives. Unfortunately, paying me rarely became a priority once their divorce was over and their lives had settled down. By then, they had new homes or apartments to furnish, child care to arrange for, and child support to pay. Many couldn’t understand or remember how their divorce could have cost so much and felt justified in remitting only ten or twenty cents for every dollar owed.
Patrick was right. Many divorcing couples just kept on fighting because they didn’t have a good reason to stop. Couples in divorce are often there because they have been unable to peacefully resolve the differences that occur between them. For reasons as numerous and varied as human beings, it is in our most intimate relationships that we are least able to craft the “win-win” resolutions needed to keep a marriage thriving. The result is a series of “I win/you lose” outcomes that fuels the bitterest of divorces.
This insight that my “compassionate” collection practices were actually “enabling” my clients to keep on fighting led me to refocus my divorce practice on the future, rather than the past. At its core, my job is to help my clients get ready for the rest of their lives, with their emotional, psychological and financial resources intact.
The old way of divorce—combative, adversarial, and often vengeful—would bring the marriage to its conclusion but demolish its participants in the process…husbands, wives, and lawyers alike. My way, a new way, ends the marriage by doing the opposite. That’s why I call it “The Constructive Divorce.”
Let me assure you that Patrick and I sleep a lot more soundly these days, and only with each other.
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