A Common Sense Practical Guide to Divorce

Chapter 1

USING YOUR COMMON SENSE

T his book has been characterized as a common sense, practical guide to divorce. That characterization is critically important. Its central message is going to be that, as in your marriage, so too in your divorce, it is the two of you who should make all of the important decisions in your lives. Just as important, you should make those decisions on the same basis that you did in the past. Just as you did not make the important decisions in your marriage by resorting to a coin, so, too, you should not do so now. Just as you would not have allowed total strangers to make those decisions for you in your marriage (and if you do not know and have never met them, they are total strangers), so, too, you should not do that in your divorce. Nor do you need to have a PhD in physics to know this. Your common sense will be enough.

How did you make the important decisions in your lives in the past? As I am going to put it, you did it based on your own good judgment, the personal considerations that were important to you and the practical realities that act as limitations in all of our lives—what I am going to characterize as your common sense. Put another way, just as you considered yourselves to be the ones who were the most qualified to make those decisions in your marriage, so, too, you are the ones who are the most qualified to make those decisions in your divorce. If you have children, who made the decisions concerning them in your marriage? It is a rhetorical question. The two of you did. Why should it be any different now just because you have decided to divorce? It shouldn’t be. Again, your common sense is enough to tell you that.

Nevertheless, there will be those who will tell you otherwise. A divorce lawyer certainly will. To be sure, he will concede that the practical realities in your lives, your own good judgment and the personal considerations that are important to you may have been sufficient in your marriage. But, so he will claim, they are not now. That is because, now that you are divorcing, what you are faced with is a legal problem. To be sure, a divorce lawyer may be willing to concede that when it comes to the personal decisions affecting your children, you are still the ones who should make those decisions. But not when it comes to money. For a divorce lawyer, that is no longer a personal problem. It is now a legal problem.

You will excuse me, but this is simply legal nonsense. A problem that was a personal, practical problem yesterday doesn’t suddenly become a legal problem today because you have decided to divorce. And a divorce lawyer doesn’t suddenly acquire some knowledge and expertise when it comes to these matters that he or she never had before. That is not legal sense. As I said, it is legal nonsense and dangerous nonsense as well, which is why it is important that you know the difference.

This places a far heavier burden on a divorce lawyer than he realizes, and he does not satisfy it by simply saying that was their marriage, this is their divorce. He does not even satisfy it by pointing out the obvious, namely, that there is no necessary logic let alone methodology to what I have characterized as their making the decisions they are faced with based on their common sense. And he certainly does not satisfy it by gratuitously suggesting that the application of legal rules alone represents what it means to make an informed, intelligent decision. Rather, to sustain the burden of his argument, he has to do more. First, he has to demonstrate why, if looking to their common sense was sufficient in their marriage, it is no longer sufficient once they decide to divorce. If the answer to that first question is that while it might not have been important to get it right in their marriage, it is important in their divorce, that still leaves him with a second question. He has to demonstrate that the application of the legal rules that he argues they must look to will guarantee that they will get it right—in the context here, that their application will leave them with an agreement that, as a. divorce lawyer would put it, is fair and equitable.

It is the central thesis of this book that a divorce lawyer could not possibly meet his burden on either of these accounts, and I will address that in more detail shortly. For the time being, I will just point out something that is as obvious as the nose on one’s face. That is the fact that there is no legal requirement that divorcing husbands and wives must make informed, intelligent decisions in the sense that a divorce lawyer would define that term. Thus, as is so often the case today, if the parties work out an agreement on their own and appear before the court pro se, though the court may make some perfunctory and pro forma inquiry to satisfy itself that they know the terms of their agreement, that it represents their understanding, that they entered into it of their own free will, and that they want to incorporate it into their divorce, the court will rarely go beyond that. To put it in the terms that I have here, the court will not inquire as to their knowledge of the law, the extent to which they took the law into consideration in coming to their agreement, or even whether they each consulted with a lawyer before they signed it.

A divorce lawyer would not deny this. Nevertheless, he would argue that it is not possible for either of them to make an informed, intelligent decision unless they knew what their legal rights are. How could they know what they should ask for if they didn’t know what they are legally entitled to?

Chapter 2

A DIVORCE LAWYER’S DIRTY LITTLE SECRET

I want to acknowledge that, put that way, a divorce lawyer makes a very compelling argument. Unfortunately, it is only the packaging, not the substance, that gives the argument its force, and for you to see this, I am going to have to remove the packaging that a divorce lawyer has wrapped his argument in. But I want to postpone that.

As we have seen, a divorce lawyer will insist that it is only possible for the two of you to make what he would refer to as informed, intelligent decisions if you knew what would happen if you went to court. Fine, we will send the two of you off to a divorce lawyer who will tell you, as a divorce lawyer would put it, what your legal rights are. That should satisfy a divorce lawyer’s concern. No it won’t. He will only be satisfied if the two of you go off to separate lawyers. To be sure, the two of you never did that in your marriage when you needed the opinion of someone who had special knowledge. On the contrary, the two of you always went off together to the same person.

That was certainly the case when the two of you bought your home. You did not each go off to separate lawyers. You went off together to one lawyer. In fact, you did that despite the fact that the two of you had different opinions when it came to the home, one of you feeling that you could not afford it, the other feeling that you could. Did the lawyer you consulted with have a problem with that, or suggest that he couldn’t meet with the two of you together because you had conflicting interests? Of course not. Nevertheless, a divorce lawyer would have a big problem with that now.

How would a divorce lawyer justify his refusal to sanction that now? (This is where the packaging comes in.) By invoking our adversarial legal system’s most sacred cow, namely, that the two of you have conflicting interests, which, when you cut through the fancy packaging, simply means that you would each like to hear different answers to the same question. But, certainly, the answer to a question cannot depend upon who is asking it. In fact, were a divorce lawyer to suggest that in any other context, he would get laughed out of the room. He won’t get laughed out of the room now, however. On the contrary, even though it represents nothing more than legal nonsense, he will be treated as if he had just said something very profound.

What is going on here? What is going on is that a divorce lawyer does not want you to go off and get the right answer. He wants you to go off and get the best answer. And you can’t do that if the two of you go off together to one lawyer who will give you the same answer, whether it pleases you or not. You can only do that if you go off to your own lawyer who will tell you what you want to hear, or at least as close to that as he can get away with.

That is a divorce lawyer’s dirty little secret. He is not going to employ legal rules objectively and impartially, as a mathematician employs the rules of mathematics, to get the right answer. Rather, he is going to employ them as a weapon in a legal tug of war, the object of which is simply to get as much as you can and to give as little as you have to. And all the rest is just talk—in the terms that I have put it, just the packaging.

Unfortunately, there is more to it than that. If you follow a divorce lawyer’s counsel and go off and get answers to your questions in the name of putting you in a position to make informed, intelligent decisions, it has to be assumed that you will be given answers to your questions. That is certainly what a divorce lawyer has led you to believe. In other words, just as a mathematician will give you an answer to a mathematical question that you have, so, too, a divorce lawyer will give you an answer to a legal question that you have. Nor will it make any difference which mathematician does the adding or subtracting. The answer will be the same in every case. Moreover, the mathematician you pose the question to will be