Romance often leads to marriage, and marriage often leads to divorce. The latter is not only emotionally painful but legally complicated, which is why most people hire lawyers to help them. The following conversations are with lawyers who specialize in divorce, who spend most of their time helping untie the matrimonial knot.
Would you please tell us about yourself? How long have you been practicing law, and what percentage of your practice relates to family law, specifically divorce issues?
I graduated from law school in ’89, and I spent the first five — really seven — years after law school involved in child-advocacy work. I taught the child-advocacy program at USD, the clinic that they had in child advocacy for law students. I worked with adolescents and teenagers who had legal problems and a variety of mental-health and school issues. Then I was really the creator and leader of a movement to reform county services for children in need of mental health.
I started practicing family law around three years ago — two and a half, three years ago — joining this practice as a partner. Our firm is primarily dedicated to family law. I still do a fair amount of work in the juvenile court as well as guardianships for grandparents and relatives who are caring for children. I also serve as minor’s counsel in family-law matters when appointed by the bench. So all of my work is exclusively to family proceedings, and about 80 percent of it is in the family court on both dissolution and property matters, custody and visitation matters…the gamut that we all cover.
You have a particular focus, I take it, in child issues.
I do. I certainly handle all the matters in the cases and have been very successful in all facets of it, but I tell my clients, “You know, if you want to argue over your property with your spouse, soon to be ex-spouse, argue as much as you want. You’re going to spend a lot of money, you’re probably going to fritter a lot of your money away that would be saved if you would settle and both come to some agreement. But don’t argue over your kids. That’s the worst thing you can do.”
If you’re retained by a mother, your task is to represent that mother and her claim, her interest. If you’re retained by the father, the same is true. Within our system of adversarial advocacy, do you ever find yourself saying, “You know, I don’t want to represent either one of these people. I just want to help this child”?
Not very often, and I’ll tell you why. If someone walks into my office and their position is really, I think, damaging to their child, I won’t take the case. I’m not going to advocate for a position on behalf of my client that I can’t go to sleep at night without being concerned I’ve done something wrong. Now, short of that, there’s a lot of gray area.
When people come in and they have the distress that goes along with divorce, whether you want the divorce or not doesn’t matter, it’s still always very stressful, very anxiety-causing. It’s one of the major emotional, physical, financial traumas in people’s lives, no matter what. And when it comes to children, nothing is more traumatic. You feel so vulnerable as mother or father as to what’s going to happen in the future on so many levels.
I can have a very great impact as counsel, both being responsible for my client’s legal rights, as well as counseling them as a lawyer. I can have a great influence over how they approach the case, what type of information they’re going to be given, what type of information they’re going to further seek out, how they’re going to approach the other parent. I can have an even greater impact if I know the lawyer on the other side shares my perspective and the perspective of most professionals who understand child custody and divorce, which is that people need to communicate. They need to talk, they need to get to a common ground. They’ve got to recognize that both parents are important in the child’s life fundamentally, that that’s true. Even when there’s been abuse and domestic violence, both parents are a significant presence in the child’s life. Now, how that presence gets interpreted and how it physically plays out is totally different when you have abuse or difficult domestic violence, but it doesn’t decrease the significance of the parent figure in the child’s life.
So I very rarely feel, “Oh gee, I’d rather be minor’s counsel in this case.” Because it’s a mistake to say that we can take responsibility for the child’s health and well-being out of the decision-making process between the parents. They’re responsible ultimately, not society, not the court, not me. If they can’t figure it out, the child’s going to be damaged by it. My job is to help them figure it out, as well as do what I can to, frankly, take it out of an adversarial posture if I possibly can. If I cannot, to have that process go as well as it can.
What changes have you seen related to children’s issues?
There has been a change in the court process. Part of it is statutory, in that, over the last ten years, California has moved towards requiring that the parents have mediation that’s provided by the court. Very controversial. The fathers’ rights groups put up posters against this process. The mothers’ groups who think they’ve been abused put up websites against the process.
The process of mediation?
Yeah. And I totally support it. I think the court is much better off having what’s called mediation. In our county I wouldn’t really even call it that. Before you get into court with your custody matter, you’re required to go see a mediator that’s provided by the court, which is called family court services. That’s the arm of the court that does that, custody mediation. Or you can opt to go to a private mediator. In either case, the court is asking a professional who meets certain requirements set out in state law to make a recommendation to the judge as to what should be done. But they only make a recommendation if the parents cannot agree. So it at least ensures that there’s going to be some point, if people have filed a motion, that they’re going to have to talk to each other or talk to someone else, ’cause sometimes the parents won’t sit in the same room. That’s an improvement. That didn’t use to happen. As a result of that, there’s a lot more consciousness by the judges that these things need to be resolved out of the courtroom.
In addition, in San Diego County, we have a commitment from the bench. We have good judges who care about children’s issues and who are educated about that by a number of different community organizations and who support other types of interventions and other types of services to help parents get along better.
I’m the chair of the board of an organization called Kids’ Turn. Kids’ Turn is a six-week workshop for parents and their children together. They don’t attend the same class at the workshop, but they go during the same six weeks. We teach parents how to deal with the dynamics of divorce and how to be coparents and what are the flash points for each parent and how do you avoid those things and how do you stay focused on the well-being of your child. Then we help the children in an age-appropriate workshop led by a teacher or a psychologist — how the children can stay out of the conflict, and that it’s not their responsibility to communicate between their parents, and that it’s not their fault, and that both of their parents will be there for them. That’s a very significant development, to have that kind of a service in the county. We are awaiting a significant grant from the California Endowment to really expand those services, and the bench is totally in support of that. So there has been, to support that, some research that’s been published in the last five years which really focuses on the impact a divorce can have on children, and that has caused a spike in the interest of the court and of some parents in dealing with that.
However, let me say — and this is one of my soapbox issues — I really believe, and so do many of my colleagues and certainly all of the mental-health professionals who deal with this and teachers who encounter this problem — that divorce is a major mental-health issue for children, as significant in numbers as child abuse, more significant in numbers, more significant in incidents. I mean, you walk into any public school classroom, 50 percent of those kids are going through divorce at some point. When there’s conflict, we know the impact it has on kids. It causes physical ailments. There’s research now that shows that. It certainly causes emotional problems; it can cause school failure. Some of these may be short-term, some of the impacts are long-term, some of them lead to deaths, and we have to take responsibility for that problem as a public mental-health issue, as a public-health crisis. But we don’t. And there’s lots of reasons, some of which I can’t quite understand, but we don’t do that.
Are we afraid to admit the problem because that might impinge on whether we get our divorces?
That’s right. So many of us have gone through divorces. It’s nothing anybody wants to go through. Nobody wants to remember it, because it’s rarely a process that is amicable. Sometimes it is, but not usually. Also, I think it’s the American notion that it’s a private matter. It’s somebody else’s problem. You have two parents; they have to figure it out. You know, in child abuse we all recognize the child’s defenseless, but for some reason, when it’s two parents fighting, we don’t want to get involved in that as a public issue, as something that we should be having some intervention.
Do you think it’s fair to say that divorce will always inflict serious wounds on children? That all we can do, with a lot of hard work and maybe prayer, is to minimize some of those wounds or make them not quite as severe?
I wouldn’t start from the position that there’s always going to be wounds. Divorce will always cause a change in the child’s life, which is going to be, in some fashion, significant and potentially traumatic. It’s a change. It’s a major, major change. And people didn’t used to think that. People used to think, “Oh, well, if they stay with Mom they’ll be fine.”
There’s always a change. The question is, can that change be something that doesn’t inflict harm, which is different. There’s life in two households. There’s life with a new spouse. There’s life with two extended families. How do we have that change be something that is not harmful and that potentially can be enriching and okay? I don’t want to say it’s ever as good as growing up in an intact family with two parents who love each other, but if that’s not something you’re going to have, how do we make the alternative something which doesn’t harm the child? There are plenty of studies that show you don’t have to harm your children when you get divorced.
There’s plenty of clients that come in the door — and you’ll hear this from many divorce attorneys — where we look at them and want to say, and sometimes do, “Can’t you figure out how to stay together?” Or, “Can’t you last a few more years ’cause your kids are young?” Or whatever. But none of us can get inside the hearts and minds of our clients. We’re not in their shoes. By the time they come to us they’re in a lot of pain and they’ve made some very tough decisions. At that point, how do we help minimize the harm and maximize the good and the support?
We know what does it. Again, this is from research; it’s also from our experience. Children need to know that both parents are going to be in their life, that no one’s disappearing. They need their extended family to stay involved on both sides. They do much better if they’re in a supportive community, whether that’s a church community, a school community — it’s documented — some system of support beyond their family, a hobby that they can continue to maintain and be enriched by and feel a good self-esteem from. It’s documented that that makes a difference, and not having their economic lifestyle dramatically change with either parent.
The moving, having new houses, people are always worried about that. That has very little impact on kids. They don’t care. What they care about is if Mom suddenly goes from having lived in a mansion to living in a one-bedroom apartment. If Mom goes from having lived in a really nice, middle-class house to living in a smaller house, or living in a townhouse, that’s not going to have a huge impact on them. If Mom’s wringing her hands ’cause she can’t put food on the table or Dad is out of work because he’s emotionally bankrupted from the process, that has an impact on them. So we know what it takes to help kids deal with divorce, and the legal system is partly designed to account for that.
Do you think the courts tend to favor fathers or mothers in the process?
On an individual basis, judges bring to their decision-making their own experience and knowledge and wisdom. To pretend that a father or mother sitting on the bench isn’t going to be reflecting on their own experience as a parent would be foolhardy. However, I can’t say that I’ve seen biased decisions in judges favoring mothers over fathers in any consistent way. Some judges have less patience for people who don’t want to go to work. Some judges have less patience for fathers who insist on 50-50 to the T. You see that. Those are sort of philosophical problems or biases that people have, but I would not say that our bench exhibits any kind of systemic or personally consistent bias toward one parent or the other.
Now the posture of the law — separate from judges — the law says you always do what’s in the best interest of the child and you try to maintain stability of custodial relationships. Those are the two kinds of hallmarks of custody decision-making from the perspective of appellate law and decision-making of trial judges. Over the years, there has developed a recognition in the case law that fathers can be primary parents and that parents can share custody of a child.
I ask the question, I guess, because it seems in our culture as a whole there’s a growing recognition of the importance of fathers in a child’s life. Not long ago, it seems, children were basically seen as the mother’s responsibility. Now though, not only do you have maternity leave, but you have paternity leave and stay-at-home dads. I’m wondering if that has influenced the court.
I believe it has. You need to talk with people who’ve been in the practice for 30 years to get a real perspective on that. For example, I have two or three cases where fathers have fought for and gotten shared custody almost 50-50, but I say “shared custody” because it can vary in terms of what the schedule looks like, of very young children, one-year-olds. Really the research supports continuing and frequent contact with two parents, even for young children. There’s a difference of opinion whether those contacts should include overnights and what is best for the child in terms of the schedule, but judges are definitely giving very substantial time to fathers, and that time is for very young children as well, and recognizing that dads can change diapers and put kids to bed in a rocking chair and get up in the morning and get them ready for preschool.
But do you think there’s some basic biological force in play with a mother that is different from a father?
I don’t know if it’s biological. Maybe it is. In most families, when the couple is married, even if she’s not a stay-at-home mom, she’s making the decisions: what school they’re going to go to, what their clothing is going to be like. That’s just not what dads normally do. When you see a dad who, during the marriage, did that, it stands out.
You know, I have one case where he was the one who was tracking what kind of foods the child ate, and he would make the baby food and he would get up in the middle of the night as much as she was. That’s not normal. It’s becoming more normal because both parents work and moms are saying, “Heck, I’m not going to do all this.” Even when they’re sharing physical duties, it’s still usually Mom who is responsible for the structuring of the home life. So whether that’s biological or cultural, I don’t know. But it’s real hard for mothers when there’s a divorce and Dad pops up and says, “I want the kids as much as you do.” “Well, why? I’m the one who gets to make the decisions here. I’m the one who knows them better.”
What complicates that, California’s child-support formula is calculated based upon a very complicated set of rules that were adopted after much debate in the legislature. It’s so complex that none of us understand it except we go to our computers and punch in the numbers and a number comes out. That formula takes into account parental income, how much of the parents’ income on both sides is going to be devoted to child support. And the program, in its equation, makes an assumption about what’s appropriate in terms of a percentage of your gross income. And it calculates support based upon your time-share. So if you’re the higher-earning parent, you’re going to pay more if the children are with you only 30 percent of the time than if they’re with you 49 percent or 51 percent of the time.
So the amount of time the child is with you bears some kind of economic advantage?
It does! So what do you see happening in almost every case, even where there’s very high incomes? Mother says the only reason he wants the kids is because it’s going to lessen his child-support payment, and Dad says, “I want the kids no matter what.” But, of course, he knows if he gets the kids more it does lessen his support payment.
Yeah, but on the other side of it he could say, “Look, number one, I have to pay more and, number two, I don’t even get to see the kid as much.”
That’s right. And it’s so hard for people — almost impossible — to separate support and the impact that the time-share has on support payment from what’s best for the child. It’s impossible because the parties know that whatever decision is made about time-share is going to impact how much money exchanges between them. On the other hand, there is great logic and wisdom to why it’s done that way, because if you have the children more, you do have greater expenses.
However, interesting problem: if you’ve got your kids 35 percent of the time — let’s say you have them every other weekend and one night during the week, or you have them Thursday through Sunday, an extended weekend — you still have to have the same size house as you would if you had them all the time. Your out-of-pocket expenses may be somewhat less than the parent who has them a couple days more a week, because you have less utilities and they’re not taking showers and you’re not buying food, but the formula tries to take account of the fact that you should each be spending a certain portion of your income for the children. But the dilemma for each parent is, if I’m going to have my kids at all in a significant way, other than going to pick them up for dinner and returning them to the other parent’s home, I have to maintain a household and pay my bills and do whatever else I have to do just like he does, or just like she does.
So there’s a lot of tension that gets put into the custody negotiations when people are focused on the money. Not always. I’ve seen wonderful interactions between parents where Dad basically says, “Whatever it says I’m supposed to pay, that’s what I’m going to pay.” And I really know they’re not making their request of child custody based upon what they’re going to have to pay or not pay.
Once they come to you, do the issues change?
There’s a couple of interesting rules of thumb that you’ll hear from divorce attorneys and mental-health people and judges. The first is that generally how people related to each other during the marriage continues in the divorce. So if one was controlling and the other was submissive, that continues. If money was always the point of contention, money will continue to be. If they managed during the marriage to truly share parenting and they were both devoted and communicative about that devotion to their children, that will continue. So if they were very competitive, that’s going to continue. If one was the detail person and the other was the big-picture person, that will continue. So one of the things that you do as you get more experience as a lawyer is you begin to pick up on those clues that your client is giving you, because that’s going to tell you how the other party’s going to behave in the divorce.
So from that perspective, their relationship doesn’t change except that they’re not married anymore. They continue to relate to each other often in the same way. The issues change over time. I don’t think I would phrase the contrast to “what were the issues that led to the divorce and do those issues change,” but rather I would say that time changes what people are invested in in the divorce process.
This is a really important principle when we talk about court reform. When you start the divorce process, you file the petition within 30 or 60 days, and the other person is supposed to file their response once they’ve been served. At that point it takes 12 months usually for the party who didn’t want the divorce to realize it’s happening. It’s a period with a lot of turmoil, a lot of mind-bending choices that people have to make, particularly if it was not mutual. Time changes what people are prepared to do and agree to. At the very beginning, “I’ll never leave this house. I have to have this house.” Twelve, 18 months down the line, when they’ve had a chance to look at their finances and understand better the mortgage market and understand what the assets of the marriage are, “Oh, well, maybe the house should be sold.” Father starts off absolutely wedded to 50-50 custody and she’s got to go to work right away and blah, blah, blah, blah, blah. That changes. “Maybe it’s not right. Maybe I’m going to have a new girlfriend and she doesn’t want the kids around all the time. Maybe her going to work right away isn’t such a good thing.” Time is important in the divorce process if we’re going to help people get through that process in a way that leaves them whole, or as whole as they can be now that they lost the picture they had before. Now, on the other hand, one of the big concerns that people have about divorce and the courts is that it takes too long, and that’s a common complaint that comes to judges. “It took me four years and it cost me $200,000.” The balance between people needing time to process what’s happening to them and to make decisions that are going to have legal impact and financial impact and emotional impact on their futures has to be taken into account. On the other hand, you shouldn’t have cases that hang around for so long that they become so stale that it causes a lot of anger.
In my judgment, you should be able to get most divorces done within 24 months. Some of them you can’t get done in less than 12, and that’s just the way it is. There’s a lot of reaction from the bar because the presiding judge last year — for the last couple years, for the entire Superior Court — along with one presiding in family law were trying to force timelines on the process. Some of the lawyers got angry about that, because it was like someone looking over their shoulder. “Are you working fast enough? Are you doing your job? Are you returning phone calls and all of that.” It’s like, please. We’re professionals. Most of us really do a good job. Others were upset, and I put myself in this camp, because there is time that has to elapse in a divorce for people to be prepared to conclude it. It’s not like a civil lawsuit where you’re arguing over awards of property and things that have to do with corporations; it’s not your life that’s getting decided here.
If you could change anything in the current divorce laws or custody laws, what would it be?
Oh, I would take custody and visitation out of an adversarial process. I would also take property out.
How do you do that?
Well, you can’t do it in the American legal system, because there’s a whole body of law which establishes people’s rights to do it this way. But there are some movements — I don’t know what else to call them — among attorneys, supported by judges, to do it differently. One of them is this movement for collaborative divorce, and it was started by some therapists and some lawyers, with the support of some judges, who were really committed to helping couples divorce collaboratively. It utilizes a team of people — two lawyers, coaches who are mental-health professionals (not giving therapy, just coaching people through the process), a financial expert, and an expert on children. One of the rules of that process is that if it ultimately goes to court, everybody’s off the case. I just got trained in that process last weekend and have been reading a lot about it. It’s a great process. It’s not something that many people know about. You can do it in tough cases; it doesn’t have to be a kumbaya case, where people are trying to be civil to each other. But it takes a lot for people to say, “I’m not going to court.”
What advice would you offer couples contemplating divorce, besides get a good lawyer?
That’s not my first piece of advice. My first piece of advice is if you have children, go see a good child specialist, whether that’s a therapist or your minister or a social worker. Get yourself informed about the impact of divorce on children and make decisions accordingly. First thing, just do that. Secondly, don’t blame each other for what’s happening, because the process of blame and saying “You’re responsible for this” will destroy your ability to have a civil divorce. Thirdly, try to make every aspect of the divorce civil. Try first the process that has you talking, as hard as it is, whether it’s through mediation, through finding lawyers who will do a collaborative divorce, through going through your own lawyer but then asking that lawyer to sit down with the other person’s lawyer with the two of you right away.
Going to court, not communicating, using language like “I’ll see you in court” or “You’ll get my papers” or “You’ll hear from my lawyer” — if there’re children, it’s the worst thing you can do. If there’re no children, it will leave scars on you, because you married this person, you loved them, and you shared a life with them. To leave that relationship now hating them, which is what can happen, or not respecting them, is personally very tough. When I say it, of course, I go through my own divorce in my mind. Do I think it’s impossible in every case for people to do what I’m saying? No, I think it’s possible. But it takes a lot of will and maturity.
How many years have you been practicing law, and what percentage of your practice is divorce cases?
Well, I graduated from USD law school in 1972, so I’ve been practicing essentially for 30 years. At the beginning I had more or less a general practice. I worked for some other lawyers. Then in, I think it was 1980, when California, the state bar, adopted a specialization program — that was when I first became a certified family law specialist. That decision really directed my practice into what it is now, which is 100 percent family law.
Of the attorneys practicing family law, how many have this certification? Is this required of all attorneys practicing family law?
No, this is pretty much a minority, if you would, of those attorneys who deal exclusively with family-law issues. To become a certified family law specialist, you have to demonstrate that you’ve handled a particular number of cases, that you’ve done a particular number of trials. Then you have to pass an examination that’s administered by the Board of Legal Specialization. Then there’s what they call a peer-review period, whereby family lawyers in your area who are certified specialists look at your application and let the commission know if there’s anything that would merit further investigation. So, for example, the peer-review issues would not be how smart you are and whether you could pass the exam, but whether you’re ethical, whether you tend to settle cases or whether you’re litigious, that kind of thing. In our county, I would guess somewhere between 25 percent, maybe as high as 30 percent, of those who are practicing family law exclusively are certified specialists.
How has family changed in the 30 years you’ve been practicing?
Well, it certainly has become a lot more complicated.
Legally. And a lot of that has been due to changes in family law, both in terms of the number of cases that have come down from appellate courts, including the California Supreme Court, where various statutes have been interpreted, but more significantly from the legislature, where we have had all sorts of legislation dealing with family-law issues that have placed upon the practitioner new requirements, such as declarations of disclosure. We never had those till four or five years ago. It’s created a lot more paperwork, let’s say, than we had before.
You’re speaking of disclosures of income?
Both disclosures of income as well as disclosures of assets and debts. But now it’s been formalized so that we have formal disclosure requirements with statutory provisions that dictate what has to be contained within those disclosures. So where the legislation is good, in some respects it was done to correct some wrongs. The fact that it’s now applicable to every single case that is filed complicates those cases where people have a fairly simple divorce and they could reach an agreement with very little to do other than enter the judgment. Now, because of the paperwork that’s necessary to comply with the statutory requirements, we have to do a lot more work, and it costs a lot more money for these people to get a divorce than it otherwise would.
Have you seen any changes between couples in the 30 years you’ve been practicing?
Couples — this is a generalization, keep in mind — have become more difficult, more litigious. And all of the complaints that we commonly hear about how complicated the process is and why can’t the system be kinder and gentler, I mean, to the extent we have those complaints, in large measure there is just a huge number of people who are now fighting. Whereas it seemed before the people were a little more willing to get these things resolved without the necessity of these lengthy court battles.
So couples have become more contentious?
Yes. And just downright mean. I don’t know if it’s the increase in publicity about big divorce cases that have gone awry that have created the idea in people that they can get something by going to court.
Do you feel that in some instances they’re using the courts not to get something but to get each other?
Well, that’s the common issue that we see. When you step back and you look at, let’s say, a high-conflict case, generally it is people not willing to let go. Oftentimes you’ll take a case and you will see that from start to finish it involves a process. The process is not only the legal process and getting the paperwork done but it is also a process that involves people getting to a point where they’re emotionally ready to settle. They oftentimes won’t get to that point for a good number of months. They’re just not — I’m trying to remember her name, she wrote a book on death and dying…
Yes. Elisabeth Kübler-Ross. She talked about the various stages. If you look at those stages and apply them to the context of divorce, it’s very, very similar. By the time you get to acceptance, you have had to go through the step of denial, the step of anger. Those same stages are very applicable to what we see. People repeat them and repeat them and repeat them until they finally are ready to accept the consequences, if you will.
I can see that, for some people, a divorce could be concluded too soon; that they need the legal process to help them through the psychological process.
Exactly. Sometimes the legal process helps the psychological process, but oftentimes it gets people stuck in one of those stages, particularly in the anger stage. For whatever reason, they’re not able to get out of that. For that reason, we will frequently require our clients to utilize therapy, counseling of some sort, if they want to continue here at our office.
In your experience, what is the greatest cause of marital failure?
I don’t know if there is any single cause. It usually relates back to the partner that they’ve picked and the differences in the personalities and their inability to deal effectively with those differences. I just couldn’t point to a single one. I mean, we see commonly — not in the majority of cases, but commonly — someone has found a new person. That usually occurs after the relationship has been in trouble for a good length of time. Other issues occur.
I’ll tell you something that we see commonly is retirement, where a couple cannot deal with that kind of significant change, where someone who was in control of the household is suddenly faced with a partner who has been out of the household most of the time and that partner is now retired and comes home and now wants to, let’s say, meddle with the other partner’s control and…
As in, “I married you for better or for worse, but not for lunch.”
Exactly! Sometimes marriages work better when partners are away from each other during the day!
Death can be a triggering factor.
Death of a child?
Death of a child, death of a parent, anything that’s a big event in the lives of the partners. It either ends up driving them closer together or driving the wedge in deeper, and it really just depends on their ability to support one another and their own particular personalities.
What about financial disagreements?
Well, that can be common, and we do see that a lot. Although I’m not going to say we see it in the majority of cases by any means. It’s odd, because in our practice, in good times we see an increase in divorce. So overall, numerically our cases will increase in good times, and my thinking is that people tend to stick together when they’re economically insecure; that it’s much more easy to make the change when there’s some feeling of economic security. So right now our numbers will be down. The cases are usually bigger, but the numbers are down.
What about sexual issues? Do people ever list that as a primary reason?
You mean if somebody is gay?
Well, that, or if there are two different levels of need for a sexual life. If one wants it and the other doesn’t.
It’s happened, that’s for sure! I’ll tell you, we’ve had more than one where older couples have come in and the triggering factor has been Viagra, where the old guy suddenly discovered some new life in the form of a little blue pill, and his spouse wants no part of it. He’s not willing to let go, so that has occurred more than once. That is less common.
We’ve had some pretty funny cases. A lot of times, and this sounds sort of cynical, but I call this entertainment law. If it was me going through this it would be absolutely horrible, but watching people behave — you know, it reduces us all, on some level, to teenagers. We have this need to lash out and misbehave during this process, and that brings up, let’s say, a lot of negative emotional energy. Watching people go through it is sometimes funny, but some of the cases are just, you just shake your head and can’t believe it! One instance I can think of, this physician’s girlfriend was a dominatrix — and he was in the process of going through a divorce. And the person he was divorcing kept bringing up, as part of the custody issues, the fact that this dominatrix girlfriend was getting arrested for things, and it was really quite funny!
You shake your head over the choices that some people make.
Exactly! So maybe that was one of those issues where he had a fondness for that type of activity, and that’s what created the breakup. You know, we all go through changes, and I think you see our eccentricities come out more during midlife. They call them a midlife crisis in some people, but people generally change or their eccentricities come out and they become less tolerable as we get older.
Do the central problems between couples evolve and change through the process of divorce?
What I think the answer is, if I understood the question, is it really depends upon how the people deal with the process. Some people will come in and they will be of a mind, let’s call it reasonable, and they want to get their case settled in a reasonable fashion and we do the work that’s necessary to do and they adopt a solution-oriented attitude and we get it resolved. Other people come in and their anger is exacerbated. The process makes them feel empowered such that they want to maybe reach out and hurt the other party, and they go on to make matters worse rather than better. That really has more to do with the personalities. Sometimes you’ll see one person who’s wanting to settle and another person who doesn’t. That’s, let’s say, more common.
In general, do men tend to make it more difficult or do women? Are men meaner or are women meaner in the worst cases?
Well, I would say they probably are equal in terms of the numbers who are being mean, but I don’t know. There’s been some pretty big meanness on both sides. You take Betty Broderick, for example, instances like that. We had her in our office for all of two months, and this was more than two years before she shot and killed Dan and Linda. That was just an incredible instance where someone was unable to let go and the results were tragic. We’ve had other instances that have been much less intense, because the end results haven’t been murder and a death, but it has resulted in bitterness and an inability to let go such that the person doesn’t have a life afterward, other than one that’s filled with bitterness, resentment, and anger.
Let me ask you a personal question here. How has the practice of family law for 30 years changed your own life? I mean, day by day you’re seeing marriages break up — in what ways has that influenced your own relationships?
It certainly has made me feel that my life is much more normal than I ever thought it was in comparison to what I see! I would say in a lot of ways it’s given me — well, one, I have a lot more empathy for people who are going through these very, very difficult times, and I think I have a greater ability to deal with conflict in my personal life, just having watched people not deal with conflict in theirs, and that not dealing with conflict has led to a breakdown of communication and oftentimes to a breakdown of the relationship. From that standpoint, I guess I feel like my life has been enhanced by that. I’ve got to tell you, I don’t let this stuff get to me. I take an awful lot of time off and get away from it.
I would think you’d have to. Otherwise, it’d wear you out, wouldn’t it — just emotionally?
Well, if you let it. But if you get into it on an emotional level, you’re done. You can’t stand before a judge and argue a case and sound like a litigant. You’ve got to approach it as a lawyer. You’ve got to look at it, “What are the legal issues here and how can I resolve them?” I mean, most of what we see — it’s a mechanical process — and most of what we see aren’t legal issues, they’re practical issues. People need a forum to resolve those practical issues, and that’s why mediation, alternative dispute resolution, is somewhat helpful, because it gives them the ability to talk about some of these practical issues, whereas the court system drives a further wedge between people and they end up communicating through lawyers rather than directly.
Back to the personal: are you married?
Okay, well, that may put you in a good position for dealing with all this! But my question is still applicable — do you ever, in an argument with someone you care a great deal about, hear yourself sounding like a lawyer and have to check yourself on that, realizing you’re not in court?
Well, I’ll tell you. I don’t, but my partner, who is also a lawyer, does.
And, of course, he would never say this about you!
Never! No, I’m sure he would. Yeah, but sometimes you tend to. It drives people crazy. I see them doing that to each other in mediation sessions. Somebody will be analyzing the problem instead of speaking from the heart. It’s usually the guy who’s the analytical one. But oftentimes we see it not so much as a gender issue, but somebody’s way ahead — and it could be either party, but more frequently I would say women — and they’re ahead in the sense that they have been thinking about this. They’ve sought counseling about it, and it’s taken maybe a year, year and a half, before they finally decided they’re going to end the relationship, and then they spring it on the husband and he is in a total state of shock. Now the woman is ready to move on, and she can analyze it and tell him exactly why, but he’s not ready for that analysis. So that happens a lot. I would say for most couples in divorcing situations, one party is way ahead of the other emotionally.
If you could change anything about current divorce laws, what would it be?
My big push would be to have the legislation mandate mediation or at least give the judges authority as they do in civil courts. Why they don’t do that in family courts is beyond me. Right now, the only mediation that the court can order is that related to custody issues. We should have mandatory mediation or the capability — the judges should have the capability — of ordering on all financial issues so that parties are forced to sit down and talk to one another instead of engaging one another in these ongoing battles.
What advice would you offer couples contemplating marriage?
I would say it’s too bad we don’t mandate counseling on that end. If people would even take a simple personality-profile test to understand one another. We all tend to gravitate toward our opposite, in some respects, for balance. You need to understand that when you marry an extrovert that wants to be around people, and you’re an introvert who kind of needs downtime or time to yourself, you’re setting yourself up for conflict. But if you understand that the conflict has nothing to do with you individually, that it’s not a personal attack ’cause your partner wants to go out and have fun, it has to do with their particular emotional makeup and needs. I would say get some counseling, understand one another. But the other thing, the prenups have gotten a bad rap, but in my view they force people to discuss hard issues that people don’t generally discuss. In other words, when you’re going through the romancing process you’re not talking about how is our money going to be handled, who’s going to be in charge of it, who’s going to pay the day-to-day bills. And people go in with expectations that are often not met because they’re not discussed. There may be issues that need to be discussed. They don’t need to wreck the relationship; there just needs to be an understanding that there are differences in how people think about these things. If you’re willing to get married, you’ve got to also respect the differences in your partner.
And what advice would you offer couples contemplating divorce, besides get a good lawyer?
Well, certainly I would never advocate that parties not seek legal advice, because the information that they can obtain about what could happen in the event of a divorce could be invaluable. The advice I give to all of our clients is, first of all, if there are young children, have you sought counseling and is the marriage really irretrievable? I mean, it’s just way too easy to give up in good times, and it can have some rather profound and lasting consequences on children. But if people have really given it a try and they get to that point where they’re having to go through the divorce, then explore alternative dispute resolution, and get somebody who’s skilled not only at mediation, but who’s skilled as a family-law mediator. In other words, somebody who knows family law, knows the application of the legal principles so that you’re not steered in the wrong direction and then you go to a lawyer and learn that, wait a minute, you gave up way too much.
Finally, Bill, I have to ask this question. After spending 30 years helping people dissolve their marriages, what do you think about gay marriage?
Well, that would certainly give us a whole new group to…
New business, okay!
I’ll tell you, if most of my gay friends realized what the application of family law and the Family Law Act would do in terms of their relationship, they might not be so anxious to get involved in it. The problem is, we use the word “marriage.” If we just get rid of that word and say, “Are you in favor of gay civil union that gives those couples that want it the same protections as marriage?” And it is a civil aspect we’re talking about here; that is, the application of the Family Law Act. Then I would say absolutely yes. As a religious concept, I’m not there.
Would you tell us about yourself? How long have you been practicing law? What percentage of your practice relates to family law, specifically divorce?
I’ve been a lawyer since 1974. I’ve been certified by the state bar Board of Legal Specialization as a legal specialist in family law since 1980, and I have been a member of the American Academy of Matrimonial Lawyers since 1993. I’m president-elect of the Southern California chapter of the American Academy of Matrimonial Lawyers. I would say that in the past 25 years, 90 percent of my practice has been devoted to divorce work. I’m also an adoption attorney, so I’ve been doing adoptions for about 22 years.
How has the practice of divorce law changed during these years that you’ve been in practice?
When I first started practicing law and up until about ten years ago, I would have a balanced caseload of couples who were somewhat acrimonious and needed to litigate, whether it was light litigation or heavy-duty, bloodbath litigation. Then I would have maybe 50 percent of my clients who were individuals able to work out their cases without litigation and through settlements, through the assistance of their attorneys. About ten years ago, mediation became very popular for divorces. What I found as a lawyer was that the 50 percent who were willing to settle their cases, willing to work things out, were being routed into mediation, and appropriately so. That left the attorneys with the 50 percent who wanted to litigate, either litigation-light or litigation-heavy. So I think that the attorneys and the court system are under a lot more pressure, ’cause the more acrimonious cases are what is seen at the courthouse.
Intelligent people who care about their children, who are not in a power struggle with one another, and who are relatively emotionally healthy — as anyone who’s going through a divorce is going to have some emotional issues involved, whether it’s the right thing or not — relatively healthy people, mentally healthy people, understand that mediation is the way to go and that they are much smarter to sit down with an experienced attorney and work out the problems of their case. It’s complicated, but people can sit down and mediate that with a skilled mediator. Those people are the people that I admire. The people that go to court are the people that maybe are having a power struggle over their children, maybe are having power struggles over issues that happened in the marriage, just pain and control issues, and they carry right into the divorce.
In your experience, what would you say is the greatest cause of marital failure?
I think it’s as basic as lack of communication, that the marriage lacks the communication that would lead people to negotiate issues that they have — whether it be money, whether it be sex, whether it be kids, whether it be work. At least one of those issues comes up in every single divorce.
My take on it is that people get tired of not having their needs met and not being heard and decide, “I’m not going to do this anymore.” And then some factor, this kind of sub-issue — the new person, the loss of the job, the money problems, the sex problems — one of those things gets blamed. But it’s really the failure for the relationship to provide a level of trust and intimacy and support that people need and want. It’s the old Ann Landers thing. “Would I be better off with this person or without this person?” And when you factor in another subproblem, sex, another relationship, an affair, money, the kids — lots of problems with kids — people are willing to leave, thinking there’s something better.
Do the central problems between couples evolve through the process of divorce itself? That is to say, a couple comes to you because of certain issues — at least, that’s what they speak about — but then in the process itself, which could take a couple of years, do the points of contention become something else?
Yes. I think that the points of contention boil down to two things: kids and money. When you’ve lived on the edge of your two paychecks and you couldn’t support your household on those two paychecks and now you have two households, money becomes the driving factor. “How am I going to get my share that’s enough for me to live a decent life?”
Secondarily, the kids. “I’d like to see my kids every day,” each parent says. Well, they’re not going to get to see their kids every day, so how are they going to fashion something that’s going to get them whatever quality they think they need and their children need with each of their parents. So they start digging in — “I want the kids with me; I should be the primary parent” — instead of figuring out a way that they’re going to be able to share the children and meet their children’s needs, and, maybe something they didn’t do in the marriage: putting their children’s needs first. You know, making sure their children get to the sporting activity, making sure their kids have what they need. Not saying to their kids, “I can’t buy you those tennis shoes, ’cause your dad didn’t give me any money.”
Here’s another thing I just thought of that I’m seeing more than in the past: I don’t know where this is coming from, but I am seeing more families where the children have severe emotional problems. I’m seeing more ADD, I’m seeing more autism, I’m seeing all kinds of things that 20 years ago I rarely saw. Maybe I saw a Down syndrome child or a cystic fibrosis child or some child that was putting a great deal of stress on the marriage. But now I see so many children with emotional problems that their parents are trying to struggle with, and children being diagnosed younger and younger with bipolar, and children suffering from depression, and children suffering from Tourette’s.
Do you think the numbers of problems of children have gone up, or are we just diagnosing it more often?
I don’t know the answer to that. I think there is usually a diagnosis of the year. A few years ago it was hyperactivity, then attention deficit disorder, and for a while it was Tourette’s. Now it’s back to ADD. So you know, it may just be what we all experienced as kids. Maybe we had a brother who was not very attentive in school and couldn’t sit still in his chair; well, no one paid any attention to that because, you know, three little kids couldn’t sit in their seat. Now you can’t sit in your seat, you get a diagnosis and you get medication, you get therapy, and it’s very stressful on families, very stressful.
How have you seen the law evolve in the years you’ve been practicing?
Well, family law’s very complex. It contains so many issues: child support, spousal support, division of property, division of retirement plans, valuation of businesses. It’s extremely complex.
Has the law become more complex?
If you look back ten years, you would see that the legislation that gets tinkered with every year — midsession, midyear, and each year in each session — the most in law is family law.
It just gets layered.
You know, we just settle into something, and some special-interest group will say, “I think something more needs to be done for protection.” We have legislation every year, every session, on domestic violence, how that impacts custody, how that impacts all kind of rights.
We also see legislation on whatever the hot topic of the year is. Right now in the United States, the biggest topic, the biggest issue, is move-away cases and how do we deal with those. When both parents live here in San Diego, one parent wants to move to Ohio because that’s where her parents live and that’s where she’s going to be able to get a job, or that’s where her husband has been transferred or something like that. Where do the children stay? Do the children go with the mom? Do they stay with the dad?
And how can visitation rights be honored?
Right. How can the mandate of continuing and frequent contact be carried out when parents live far away? And how does that impact children? Many years ago I read a little editorial opinion piece written by a 16-year-old boy who was really irritated and annoyed because he had to do all the traveling. “I had to go here and see my dad, then I’ve got to go back and see my mom, and they don’t have to travel.”
He’s got a point.
“They made up this schedule for me. I’m on the road every weekend, I’m flying up to San Francisco.” He’d rather be home. He’s 16. It was really an eye-opener for me.
I think family law is an evolving, living thing, because there’s always going to be a special-interest group who has a legislator and who says, “Look, I think we need this. I think we need that.” For instance, about ten years ago now, it was determined that there wasn’t enough full, honest disclosure about assets and income. A whole new procedure was created to disclose information, and the statutes were amended, the family code was amended, and that little exercise probably cost people a minimum of $2000 more on each side for their case, a maximum of several thousands of dollars just to fill out this paperwork. Some people fill it out really well and some people fill it out really poorly, and I’m not sure that it serves the purpose of guaranteeing that disclosure’s going to be made. But we all have to do it; it’s a requirement.
I’m going to ask you to go out on a limb. In general, do you think the courts tend to favor men or favor women these days, and have you seen any change in that?
When I first started out and was a young lawyer, of course I only saw white men who were older than me as judges. I started in 1975. They were 50 at the time and I was 25. Now I’m much older than that, so 50’s not so old. But I think there was favoritism towards women, particularly in custody matters and making sure that the support was adequate to take care of the mom’s household with the kids. It’s obviously supposed to be gender neutral. I couldn’t possibly make a blanket statement about all the judges. There’s one judge who everybody believes is very favorable to fathers. There’s another judge who always seems to bend over and be favorable to mothers. The wonderful thing about being a family lawyer is that we argue both sides of the case, so we have a much better perspective than the criminal attorney, say, who only does one side. One day we could be arguing an issue for the woman’s side and the next day the same issue for the man’s side.
Each judge is different. I honestly think that the judges that we’ve had in the last ten years in family court have attempted to give each case a fair hearing and to not take gender sides. Certainly, if there’s a close call, I can name the judges who I think would make the call for the woman and the judges who I think would make the call for the man.
Do you think lawyers have a hand in intensifying the contentiousness?
Absolutely I do. See, I look at myself as a lawyer, attorney, and counselor-at-law, and I think a lot of attorneys don’t have the counselor-at-law part. “I’m your advocate. I’m going to get you what you want, I’m going to say what you want, but I’m not going to go out there without any particular counseling about why you want that. Why do you want that? What will that do for you? What will that do for your children? Yeah, I know you’re really hurt and angry and upset, but let’s talk about the rest of your life and what’s going to happen from now. I know you’re scared, but being scared is not a reason to fight.”
Does it wear you out? Personally?
I would think this would be one of the hardest jobs.
It is. When I represent lawyers, I’ve never had a lawyer who didn’t say to me, “How can you do this? How can you come down here?” I was with a lawyer this week and he said, “It’s so negative down here. It’s so negative, it’s so noisy. Ugh! How can you stand coming down here?”
Is the rate of depression high among divorce lawyers?
I don’t think so. No, none of my friends are particularly depressed. I think it’s really important to have an outside life.
Be able to turn it off?
Right. I think it’s real important. A lot of us travel a lot and are gone for weeks at a time. Not often enough. You need to have a support system and a family system outside of work, and you need to keep work where it belongs. I don’t work on the weekends. I know a lot of attorneys who do, just to kind of clean up things on their desk, but I don’t. I don’t take things home at night. I also realized that I’m not going to work more than a certain number of hours a day. But then I’ve been doing this almost 30 years. I had to figure out a way.
What advice would you offer couples contemplating divorce, besides get a good lawyer?
Actually, I do think they need a good lawyer, but I think they should see if they can do mediation or this new procedure that’s called collaborative divorce, where they work to create a plan and commit to not going to the courthouse to have judges who spend 20 minutes on their lives make major decisions for them. That’s what I would say to people. Do you really want a judge who’s spent 20 minutes listening to two attorneys say the worst things they could about each of you deciding what’s going to happen with your children for the next ten years?
I’ve been through this, so I know what a terrifying thing it is to sit there in that court and have it dawn on you what exactly is happening, that this person who really does not know either one of you is deciding your life.
Does that make any sense? Absolutely not! If I went to that judge the next day and said, “Remember the Smith case that we did yesterday?” He’d just look at me like, “No. Are you kidding? Of course I wouldn’t remember that. Why would I remember that?” So…
How long have you been practicing law? What percentage of your practice relates to family law, specifically divorce?
I’ve been a practicing attorney since 1980, so that’s 23 years. Actually, I practiced in Boston for a while and Connecticut for a while and then moved to San Francisco and then down to San Diego. At this point, 100 percent of my practice is related to family law, but early on it was a different mix.
How has this part of your practice changed through these years?
There are a lot of external things that have changed in family law. For starters, when I first started practicing family law, we were down at civil court, down in Superior Court, downtown. They separated family court and made it a building, I think it’s at least 20 years ago. Then they started direct calendaring, where one judge took responsibility for his or her own calendar and had a greater familiarity with the cases. Then the child-support guidelines came into effect. There are a lot of things that have changed over the course of the years that I’ve practiced. Child-support guidelines make less reason to go to court, ’cause you simply have to put the numbers in a computer and it will calculate what the child support should be. There’s no reason why you should spend the money to have a judge make that decision. Also minor’s counsel, San Diego’s a leader, there’s actually a minor’s counsel program where kids are being represented. I would say that program and my involvement in that program triggered or refocused my energies towards settlement, because I have more of a focus on children, not just the individual litigant that I was representing. Now there’s fast track, and people do not want to get involved in the fast-track program, they want to opt out.
What’s fast track?
It’s a new program down in family court that was started about a year ago.
Sounds like a new lane on the freeway.
It’s really controversial. Judge Strauss, a presiding judge, felt that he wanted divorces to be quickly resolved. So he instituted a new fast-track program, which is kind of putting a round peg into a square hole, because people have emotions. The emotions alone will slow down the track. People are opting out of that program.
Are people just put in this fast-track program?
So there’s no choice.
No choice. If you file Petition for Dissolution of Marriage downtown, you automatically get on the track and then there’s a whole timetable and there’s a status conference approximately 90 days after you file. Whether you want a status conference or not, you’re going down to court unless you can tell the court that you’re involved in mediation or the collaborative-divorce program. But if you’re involved in some sort of alternate dispute resolution, the court will allow you to postpone that hearing for up to a year, I think it is now. People are getting wind of that, and that’s another reason there’s some alternatives.
So would you say the law has become more complex, or is it in some way simplified?
Oh, I think it’s far more complex. As society gets more complex, the family-law arena gets more complex. The more employment benefits that employers provide to individuals, the more difficult it is to determine whether it’s community or separate and then whether it’s divisible and how to divide it. There are subspecialties within being a specialist. I would say it’s far more complex.
What do you think are the greatest causes of marital failure?
There’re actually a few things. I think one of the primary reasons is the pace of our society. I think that we are spending so much time trying to tread water, to stay above water. Just the fast pace that we are all in — where we are juggling our work commitments, our kids’ commitments, their involvement in sports and extracurricular activities — and our spiritual needs get put on the bottom shelf, along with the connection with the other spouse. It’s very difficult to maintain that connection if you don’t have the time. To me, that’s the primary reason. I think there’s a lot of dissatisfaction people have, self-doubts, dissatisfaction, which then lends themselves to looking outward, maybe not just to their spouse but to others to get that satisfaction. My real strong gut feeling is that it has to do with this society and this pace that we’re setting for all of us, and I think it’s out of control.
Are you married?
Do you find yourself occasionally pulling back from certain arguments, just remembering some of the conflicts you’ve been witnessing through the day?
No. Not necessarily. I think that my age more than anything has affected my approach to any issue. I do take the experience from my work in helping better evaluate the needs of my children. I definitely do that, whether it be academically, socially, sports, or whatever. But as far as my relationship with my husband, I don’t think it makes it any less conflictive. Maybe it does. Who knows? You’ll have to ask him.
Well, when you have a fight, do you ever hear the lawyer in you coming out?
Does he say that?
No. That doesn’t come out at all. I mean, he’s an attorney also.
Oh, you’re in trouble. Then you’ve got two attorneys going at it, but there’s no judge to help you.
The lawyer part involves money and the division and all that, and we don’t fight over that kind of thing.
What advice would you offer couples who are contemplating marriage? If you were in the role of a pastor or psychologist, what would be the things that you would want to say to them?
Well, the good news is they went to see a pastor or someone. The first thing that I would say is make sure you talk about this, the ramifications of it, before you enter into it. But the other thing that I would say is make sure that you take the time to relate to the other person and to listen to and continue to respect the other person. That would be sort of the emotional part of it, which is take some time for the two of you. If it’s one day a week, go out and make sure you make the time to make the connection with the other person. As I said, I think that what people are going through is they’re losing connection with the other person because they literally don’t have the time.
The other thing I would say — and I think about this a lot — in any marriage people need to be educated on their property rights. The saddest cases, where it doesn’t involve children, are the cases where the people come in and they’ve handled their finances in such a way that one party is more advantaged than the other. And it really wasn’t intended to be that way, but the law ends up translating it that way. That is the most disappointing situation. If those people understood the ramifications of their actions during their marriage, it would have been different, because they weren’t treating themselves as partners. I would start with the emotional, and then I would educate.
How long have you been practicing law, and what percentage of your practice today relates to family law, specifically divorce law?
I’ve been practicing for 33 years, more or less, and 100 percent of what I do is family law. I’m a judge. I do some mediation in family-law cases, and I do a fair amount of testifying as expert witness in family-law malpractice cases.
You say you’re a judge also?
I’m a pro tem judge in the Superior Court, and I’ve been a pro tem judge there for 26 years. I do a fair amount of private judging for lawyers who have divorce cases and who want to have the judge be someone other than a judge in the courthouse.
How has this part of your practice changed through the years?
I think by and large the process over the years has evolved in a number of ways. First of all, I can recall when I first started it was just at the end of the “fault concepts.” We changed the fault concepts effective really around 1970.
The so-called no-fault divorce?
Correct. And back in the fault-concept days, there was an enormous amount of rancorous litigation, because if you could prove that the other side was the black hat in the relationship, you ended up with benefits in custody, benefits in the division of property, and benefits in the allocation of support. It took a while for that concept to be erased, because as with all humans, even though something changes, it takes a while for it to sink in. So I would say there still was a lot of combativeness until the middle of the ’70s, or maybe even the end of the ’70s.
Now, I suppose the fundamental concepts of the law haven’t really changed enormously in the time that I have been practicing. We still equally divide the community property. We still set child and spousal supports. We still do the things that happen in most every case. We may do them slightly differently — pensions have become much more complicated, stock options didn’t exist years ago but now are there, and that’s a very, very complicated area of the law. So it has become much more complex now to practice family law, because the assets have become much more sophisticated than they were 30 years ago. Pensions and options particularly, and all sorts of property that didn’t exist, that was not even thought up, 30 years ago.
People also are, I think, becoming much less combative. They are looking for alternatives to the classical arrangement where one party hires the most vicious lawyer he or she can find, the other one finds a vicious lawyer, and then they spend tens and twenties and hundreds of thousands of dollars butting heads in courtrooms. They’re looking to mediation; they’re looking to arbitrate controversies. They’re looking to private resolutions away from the courthouse. They’re looking to expedite resolution of issues. They’re also looking at, instead of having two experts fix a value for something, or two experts deal with tax issues, obtaining a single expert to determine those things as to value, as to tax consequences, and so forth.
What, in your experience, is the greatest cause of marital failure?
Well, that’s interesting because each case is, of course, different. If there’s one prevailing theme, it’s probably infidelity. I would rate that as number one. Probably close behind that is either abuse of a spouse, or abuse of mind-altering substances, or abuse of alcohol. They seem to be all related in that abusers are also abusers of substances and so forth. Not always true, but mostly true.
Another sort of insidious thing that is a cause of trouble in marriage is the existence of a prenuptial agreement. I always tell people when they ask me to do a prenuptial agreement, say when the man comes to me and asks about it, I point out to him that this is probably the first pleading in a divorce that I’m going to see in five or ten years, because generally, unless the prenuptial agreement provides for some financial incentive to the other spouse, the usual scenario is one spouse has almost nothing. The other spouse has a bunch of things to protect. And if the perception going into the marriage is “I don’t trust you and I want to protect all my things from you and I want to make sure that I keep all my things and that you get little or nothing if I’m married to you for years,” that is not a good way to start a relationship.
So if there’s going to be a prenuptial agreement, generally I try to couch it in a way that allows the less pecuniary spouse to end up with something, to feel that they’re getting something out of the relationship materially. Otherwise it eats at them, and four, five, six years later, they’re divorced.
What generates the most contention — the division of assets or the determination of ongoing support?
I would say they’re probably about even. Probably if I were to tip my hat, there’d be more litigation over valuation and division of assets. In many cases the support numbers on child support, where the person is employed by a big company, are very predictable, and they can be taken from the guidelines.
Spousal support is much, much less predictable. But there’s a lot of litigation — particularly over spousal support — because there is no definition for it. If you were to sit me down in a room with another lawyer who’d been around for a long time and a judge who’d been around for, say, 30 years — say you had 100 years of experience around the table — we couldn’t tell you what spousal support is.
There’s a statute. The court is supposed to apply this statute. There are no guidelines. The statute has 14 subpoints to it. Things like, what does he earn, what does she earn? Now, it’s always interesting, and let’s be sexist for a minute and say that he is running the business. And let’s further say that his salary throughout the latter part of the marriage has been a quarter of a million dollars. But he also had a bottomless credit card, or they had a bottomless credit card that was paid by the business. They gave themselves a pension plan. They took out loans periodically that were expensed out later in the form of bonuses and just sort of disappear off the books. They gave themselves all manner of other perks, like cars and insurance policies and medical insurance plans. Well, that person’s earnings aren’t $250,000. They’re a much larger number. So someone has to go into that business and figure out what that number is so you have a spousal-support number.
Another relevant factor is what was the historical marital standard of living? Because the party who’s being supported has a right to his or her share of that as a form of support. When you get right down to the end and you’ve gone through income and age and duration of marriage and all the other issues in the 14, the final one is any other factor the court would like to consider, so it’s very amorphous. There aren’t any guidelines. There isn’t any structure for it. There isn’t even any structure as to how long it will last.
We do know that a marriage under 10 years is short, and usually support is a percentage of the marriage, a third to half. A marriage over 10 years is just open-ended. Then you get into all the horse-trading that goes on, because spousal support — for example, if you just went to court on it and you were married for 15 or 20 years, the court will just make an order that says essentially, you pay this amount of money until you die, she dies, she remarries, or until further order of court. In other words, the issue’s left open indefinitely, and either side can come back and ask for it to be increased or reduced.
But if you’re representing the person who’s got the salary or has the main income flow, one of the things that we do in the settlement process is to try to buy that right out. In other words, give an additional asset of some kind in exchange for painting a fence around spousal support, or getting a waiver of spousal support, or rather than having to pay indefinitely, having to pay for five years but paying a much larger number. On a longer marriage, that’s a huge negotiation point.
If you could change anything with the current laws on divorce, what would it be?
I think that we need to take a long look at two things that we do here that no one else does anymore. One is, we assign some mystical significance to the date of separation. And we say that some assets are valued at the date of separation and not at the time of trial, and we say that earnings after the date of separation are 100 percent owned by the person who went to work that day. That is a view that is not shared by every other state in the union, and we need to take another look at that and probably adopt the same rules that apply everywhere else.
The second thing is, we are the last and only state of the 13 community-property states that has a mandated equal division of the community assets. Everyone else has gone to a concept that is best described as equitable distribution. What that means is the court starts from a 50-50 division, but the court has discretion to say, “Okay, ma’am, it sort of looks to me like you’ll never earn anything more than minimum wage,” for example. “You’re sitting on a house with $400,000 or $500,000 in equity in it. I’m going to resolve this $4 or $5 million case. I’m going to set this house over to you and that way you’ll have a place to live, and I’ll do that under the premise that the husband making $20,000 a month can find a replacement house at some point in the future, and I’m not going to charge you with that in the division.” I think we need to start looking at that concept, ’cause most of the world does that.
Does it wear you out emotionally?
If you get worn out emotionally in these cases, you’ll last three cases. You have to distance yourself from being emotionally involved. Any lawyer who becomes emotionally involved is ineffective. The court picks up on it, everybody picks up on it, the other side picks up on it, and you have no credibility.
How many years have you been practicing law, and what percentage of your practice relates to family law?
Twenty years, 100 percent.
You’ve had considerable experience, then, in matters of divorce law. How has your practice changed during these years?
It’s the one area of the law where a small practitioner can compete with a very big firm, ’cause even the big firms only have one or two lawyers in them doing divorce work. So I can compete with any of the large firms in town in doing domestic litigation. I started out pretty much with small cases, as most lawyers do. Maybe a husband and wife, they don’t own a home, they rent, they have a car, a couple credit cards, they may have a kid. Now my cases are primarily custody related. I have complex custody and interstate-, international-custody litigation, multimillion-dollar property disputes, contingent benefit rights issues related to royalties or stock options, long-term pension benefits. You name it, I hear it now.
What, in your experience, is the greatest cause of marital failure? Why are people coming to you?
That changes based on the economic conditions we are in. I kind of keep little tabs on how the cases come in and who’s the petitioner, who’s the respondent — who’s asking for the divorce, in essence. When the economic times are really good, it’s the husband asking for the divorce. When the economic times aren’t so good, when we’re in a recession, it’s the wife filing for divorce. That doesn’t mean that husbands never file or wives always file, it just means that more often than not…and it seems to swing.
Why do you think that’s the case?
Well, the husband, when economic times are good, seems to think that, well, maybe they can afford taking on somebody new and they want to make a change in their lives and they’re going through some sort of emotional upheaval, especially if they’re middle-aged. They’re ready to take on the responsibilities of a new family or a new significant other who’s generally younger.
In the downward economic times, I find that I have wives/moms working outside the home, Dad has lost his job, Dad has been laid off or something of that sort, and she gets tired of carrying him. It appears that she could do better with less deadwood. Now those are the economic issues that come up a lot, and economics is it more than anything else. The secondary reasons are going to be reasons of infidelity, and then you get the really esoteric issues — somebody wants to have a sex change, somebody just wants to be single, somebody’s changed their religious beliefs, and the couple’s now incompatible. But it goes money, sex, and then everything else.
In that order.
Yeah. It is for me, anyway. Infidelity is not the lead reason people get divorced. Infidelity happens in relationships a lot, but a lot of couples can still work through that issue. Where the infidelity is compounded with economic crisis or — you can almost call it economic betrayal, where one spouse is truly a mushroom: they’re kept in the dark and fed a lot of bull; then all of a sudden the lights come on. For example, you have a husband that is self-employed and he manages his own business affairs. He keeps his business records locked up. The wife doesn’t sign the checkbook. She has no idea what the financial affairs of the family are; she comes to him for an allowance, things of that sort. Somehow she finds out, because something comes in the mail that indicates that they either are greatly in debt and she didn’t know it, or there’s a bank account she didn’t know about that’s got a significant amount of money in it. Then she’ll have the temerity to ask that husband, “What is this?” He won’t like the response, generally gets angry with her, and that leads to somebody calling me or somebody like me.
Do you think the central problems between couples tend to evolve or change through the process of divorce itself?
I don’t know if they shift or change, but I think the focus will change. Maybe that answers your question. I mean, they may be coming to me because of economic betrayal; she or he has found out that there’s a pot of money the other one hasn’t told them about. Then they will find out that there’s also been other types of betrayal in the relationship, whether that be infidelity or otherwise, and that may become a focus for them.
Generally speaking though, if it’s the wife filing for divorce, she may be filing based on economic issues. But what will come to the forefront really quick is bad parenting on Dad’s part, especially if she had tolerated it. That is, she has served as the buffer between Dad and the kids; she’s the one that keeps Dad from flying off the handle, something of that sort. That will come up and that will become a key focus for Mom, even though the initial reason she may have filed for divorce was an economic reason, because he doesn’t give her any money or he’s given his money to somebody else or there isn’t any money to be given. Whatever her reason for coming in on an economic basis, that will shift if he’s really not been a good father.
The same is true for Dad. When Mom is not a good mom, that is the lead reason for Dad to file, and then economics will come in secondarily. When Mom has some real problems — Mom is either a substance abuser, she has some sort of emotional problem, maybe she has a borderline personality disorder or she’s bipolar, something along those lines — and Dad has served as the buffer, he’s filing to protect the kids.
So he’s hoping for custody?
Exactly. He’s actually filing wanting custody of the kids. And then the economic things all come up later on, because in California, child support is based on a mathematical formula. There are only four elements to calculating child support: Father’s time with the children, called time-share; Mother’s time with the children, her time-share; the father’s net monthly income, the mother’s net monthly income; and then, finally, the number of children. So Dad’s income, Mom’s income, number of children, and time-share are the only four factors that go into the equation. Nobody cares what your bills are, nobody cares what you can afford. It goes into a computer and spits out an answer. So eventually, the economic reality will set in for one or the other parent that they’re going to be paying non-tax-deductible, tax-free recipient child support. In addition, you’ll pay one half of any uncovered medical, dental, optical, or psychological costs for the child, half the daycare — and that gets to be costly.
Did you say that child support is non–tax deductible?
But spousal support is tax deductible?
Right. Fully deductible by the payer and taxable by recipient. So for example, let’s say you’re making $100,000 a year and that puts you in the combined 39 percent tax bracket between the state and federal government. That means every dollar you pay your spouse in spousal support, the government gives you back 39 cents, because you’re going to get a 39-cent tax savings because you shifted the income to the other spouse. But in child support, you pay the other spouse a dollar, it costs you a dollar. So there’s no tax savings there.
Back to causes, do you think prenuptial agreements are good or bad?
They’re wonderful. But the problem is, you generally get them presented as “Well, we want this in case we get divorced.” If people would think about it…
Let me explain family law in my view to you real quick. Think of a marriage between a husband and wife as a way to buy property, to get into debt, and have kids. If you think of that, that’s the way the state looks at it. It’s just a business. We don’t even call divorce “divorce” in California; we call it “dissolution of partnership.” Now if you and I were to go into business today, we’d see a lawyer to draft up the partnership contract. The contract would say, “Don’s going to do these things for the business. Gordon is going to do these things for the business.” There’d be 30 pages of boilerplate, because lawyers like to write, but at the end of that contract, there’d be a provision for what we will do in the dissolution of partnership. Well, California calls divorce a dissolution of marriage, and in our contract, let’s say the one you and I have, that contract may say you get the name of the company and certain receivables and I get certain receivables, and maybe you’re going to pay me money not to compete against you in Southern California for three years, and that’s our deal. So if we start to work and then decide to split the sheets ten years later, we are going to apply the contract you and I drafted before we started business, a partnership contract.
When couples get married, though, they generally don’t have that. That contract is a prenuptial agreement. If you don’t have one, the state imposes one on you, and they call that the family code. The problem is, the family code is changed every day, between the legislature, the court of appeals, the California Supreme Court, the United States Supreme Court, and even our bankruptcy court appellate panel. There are decisions that change the family law every week, so much so that I get a flyer e-mailed to me. It’s single-spaced, double-sided, and it is the changes to the family code from last week. Unlike the situation where you and I are going into business and we apply the contract we drafted ten years earlier, with the family code you apply the law that exists on the day you go to trial, not even the day that you file your divorce. There’s going to be new law on the books that takes place during the time your case is going on, and that is going to impact your case.
I had another lawyer who said he suspected that prenuptial agreements may become a cause of divorce.
If they’re presented badly, yes, I think that could be true. But a prenuptial agreement is a chance for this couple to manage their financial affairs without the input from the State of California. Candidly, I don’t know about you, but I don’t like the state telling me how to manage my finances. I think it’s between my wife and me to determine whether we are going to have joint assets when we buy something. If she mistakenly decides that she’s going to use her inheritance to pay for living expenses for us because she just pulls it out of the wrong account, I think she has the right to agree with me that we’ll put that money back because we really meant to use some other money. Under California law, separate-property money used to pay community-property living expenses is a gift, unless there’s a writing otherwise, which means that if she mistakenly pulls out $50,000 and does something with it — we just live on it, use it to pay bills, and things of that sort — she doesn’t get it back, and I don’t think that’s right. A couple with a prenuptial agreement can avoid that.
Now, can it cause a divorce? Sure, if it provides for things. For example, that in the event they get divorced after five years and they have two children, she’s going to receive a million dollars, and maybe she decides she needs a million bucks and he’s not worth it. Divorcing him might get her that million dollars.
A typical prenuptial agreement is going to say the following: these are my assets, these are your assets, and we’re deciding between us that my assets will always be mine and your assets will always be yours. We’re going to create a joint checking account. Into that joint checking account we are each going to put money, or one spouse will put money that we will use to live on. Anything that comes out of that joint checking account will be joint property. If we buy something out of it, if we pay for expenses out of it, that is deemed to be joint. However, if I take money from my separate property and I buy something else, I don’t have to share it with you, and if you do likewise, you don’t have to share it with me.
In divorce, in the process itself, what tends to cause the most contention, in your experience? Custody issues?
The sharing of children. If you ask the court right now, 80 percent of the court’s time is taken up with 20 percent of the court’s cases.
And most of those 20 percent are custody?
Unlike a situation where…let’s say you and I were in a car accident. I rear-ended you and you sue me to get those damages, the damage to your car and personal injury. You and I are going to have a lawsuit, and it’s going to revolve around the events on that one day. After it’s done, I don’t owe you any more money: you got your money, you got your car fixed, you got your doctor bills paid. But in a divorce case, the issues of the children — how they’re shared, how support is paid for them — are before the court until the kids are 18 years of age. So even though you and I get a divorce today, if our kids are 5 years old, that court can tell us what to do for the next 13 years.
I assume that, after custody issues, financial ones are generally the most contentious. Would you say that the division of assets or the determination of spousal support tends to create more problems?
I think the support problems exceed the division of assets, unless the assets are very complex. That is, if you’re dealing with stock options, or residual rights under royalties, or patent rights, or there’s been a great deal of infusion of separate-property money into their relationship, that is going to impact how assets were acquired. For example, if you use your separate-property money to acquire a community asset, under 2640 of the family code, you get your investment back dollar for dollar up to the value of the asset, but no growth. And that can have a real impact if, for example, your mom gave you $200,000 towards the down payment on the house and you guys bought the house together. Now the house has to be divided and the other side finds out that after the loan’s paid you get the first $200,000 and then you guys split everything else. That’s going to cause some contention. That’ll be a problem.
But most often it’s the spousal support?
Yes. Not so much the amount, although that’s always the key factor. The arguments are about earning ability. Is the supported spouse capable of earning more than they say they are? And so you end up with a vocational analysis. A vocational counselor will come in and do a study and a workup on the supported spouse to say this is what they can do now and this is what they could do with an education. And so you have to start looking at maybe elements of rehabilitative support and a review hearing to see whether or not the supported spouse is able to maintain that marital standard of living. But that’s more important on longer marriages, marriages of ten years or more, than it is on shorter marriages, marriages under ten years.
In a marriage of ten years or more, it’s presumed long-term under the family code, and the supported spouse has a presumption of a lifetime need; that is, until the recipient dies, the other party dies, the recipient remarries, or further order of the court. A shorter-term marriage, a marriage of less than ten years, the court has the jurisdiction to give a termination date on spousal support. Kind of the rule of thumb we use is half the length of the marriage. If you’ve got a four-year marriage, you figure you’ve got a two-year window of exposure on spousal support.
How has the law changed through the years of your practice?
Oh, it’s much more complex. Let’s just use a few instances. Take child support first. It used to be based on what the judge felt to be an appropriate order. Then the federal government came down and said to states, if you wish to receive federal funding for a number of different programs, you must establish within your state a law so that any two people with the same number of children, with the same amount of money, pay the same level of child support. So we now have a mathematical formula that I gave you earlier. It doesn’t care what the expenses are; it just looks at what the net incomes are and how the children are shared. Well, in doing that it sounds like that would be a real simple way of calculating child support. It is, but now there’s litigation over how much time you have with the children, because if you’re the paying spouse, the more time you have with the kids, the less child support you’ve got to pay.
You must get instances where people argue to get custody of the kids, but they don’t want the kids at all.
It’s all economics. It’s strictly economic. Dad or Mom wants to pay less support, so they want more time with the kids. You see that kind of stuff go on all the time.
In answering your question about complexity, child support is just one instance, and that change happened in 1993. They have modified the way we calculate child support about four times since then.
We’ve also complicated the issue of calculating spousal support. It used to be based primarily on need and ability to pay. Now you have to look at the family code. There are, like, 13 factors the court has to consider, such as the health of the parties, their education, their marital lifestyle, all things of that sort. So those are all issues that we are now concerned with.
The court has now mandated, the legislature mandated, that the parties exchange preliminary declarations of disclosure, and this year they got into a redefinition of a party’s fiduciary duty to the other spouse during a marriage. Right now the courts even have a split as to whether or not the prudent-investor rule applies to transactions between spouses during the marriage. So right now there’s a split as to whether or not, if you make an investment and it loses money, you owe your wife back half of the loss because you made a bad investment. So that’s complicated it. It gets more complex every day.
We’ve had provisions added because of other legislation changes. Let’s say you get accused of domestic violence. You smacked your wife and the court issues a domestic violence restraining order against you. Unless you can prove that that didn’t happen, there’s family code provision that indicates that someone who has been determined by the court to have perpetrated domestic violence on the other spouse is detrimental to the children, which means you cannot be a custodial parent. Because detriment is the standard we use to take children from parents. So if you and the wife get into a knock-down-drag-out, if she accuses you of domestic violence, you may be precluded from having custody of your children, and now you’re going to have to have a big fight over the domestic-violence issue.
In general, do you think the courts tend to favor men or women?
I don’t think they favor either one over the other. I think 20 years ago Mom had a better shot at getting younger children. That has been my experience. In, say, the last 10 years, I think the court is much more gender-neutral. Part of that is because we have many more women judicial officers. Although I have to tell you, I think that women judicial officers tend to be harder on wives than they are on husbands.
Well, yeah! They went to school, they had a family, they had a career as a lawyer before they became a judge. They managed to do it all. They’re not really responsive to wives who have been homemakers who say, “I can’t do anything.” And won’t even get up and try. And so they get to be a little tough with them. They have walked in their shoes, so to speak. But the days of Mom always getting the kids are over. Even younger children, I mean. And we have many situations now where Dad is the househusband and Dad is getting the children and getting them more often.
Now, there are fathers out there that just swear the system is stacked against them. Probably from their perspective it is. If you take the situation where Dad has worked outside the home for ten years, Mom has been in the home, the children are emotionally bonded to Mother. If they’re hungry, hurt, sick, or happy, who they’re asking for is Mom. The fact that Dad may want to spend more time with his children is all well and good; historically that hasn’t been the case. To maintain the economic viability of the family that is now being split up — so everybody needs more money — do you let Dad spend more time with the kid, or say, “Dad, you made a decision ten years ago that you were going to work outside the home, and so you have to continue to work outside the home, because if you stay home now, Mom can’t make enough money that the kids can even eat”?
With the two-income families, it’s really worse, because we have two incomes supporting one family until they divorced. Now all of a sudden we have two families: two rents, two sets of phone bills, groceries to buy in both homes, two utility bills. All the fixed expenses that we had in one house have gone up, and there’s not enough money to go around.
But to answer your question, no. I don’t think there’s a gender bias in favor of mothers, nor is there a gender bias in favor of wives getting spousal support. I have husbands receiving spousal support all the time.
Yep. All the time. It’s based on economic factors now, and the court is much more gender blind. I do think that the court will give a longer period of support to a wife who has not worked outside the home than they will a husband, but I think the reality is that it is easier for a man to find a job in the marketplace outside the home more often than it is for a woman when she has not worked outside the home.
Has the practice of family law changed your own life?
Oh, I would say so. I’m divorced. I was married for nine years. My wife and I split over a number of different issues. Then I was single for four years. Now I’m remarried and my wife and I are about to celebrate our tenth anniversary. But she is somebody that does have separate assets. She has family money, and I’m very cautious about how she manages that money. I won’t let her do things like put it into the household and things like that. I make sure that she manages her money so it continues to be her money and there’s never any question that it’s her money. I don’t want her using funds that her family intended to benefit her in the future just for our day-to-day living crap. To me, that’s not right. So I deal with that issue. I’m also very mindful of how we hold title to things, because the title presumption is very important in a family court. Not so much for the aspect of divorce but more so for the issue of estate planning, because how you hold title to assets also impacts how assets are divided in the event of your death.
I also realize that, you know, it’s really easy to throw a marriage away. It’s a lot of work to make it stay together, and I’m willing to put the effort in to make it stay together, ’cause I love her so much it hurts.
If you could change anything with the current laws on divorce, what would it be?
I would change the way child support is calculated, so that how you share the children isn’t as big a factor. I don’t mind it being a factor, but not as big as it is in the formula now. I also would change the way the law deals with relocation cases, where you decide you want to move to the East Coast and you want to take the kids with you. Right now, the law is that the custodial parent has a presumptive right to move. Let’s say you’re a custodial parent and Mom sees the kids, say, Friday through Sunday one week and Tuesdays and Wednesdays the next week, and she has, say, six weeks in the summer. So Mom has, like, a 30 to 35 percent time-share. Presumptively, you have the right to move. Mom has to show that the move is detrimental to the point of a change in custody to stop the move, or the court has to say, “This is such a significant time-share that I’m going to look at the quality of the time and get into an analysis of what’s in the children’s best interest.” The result is that $25,000 or $30,000 will be spent on litigation costs at a minimum over an issue where, in all likelihood, that custodial parent is going to get to move. And the impact to the nonmoving parent and the children is devastating.
What advice would you give couples who are contemplating marriage?
That’s easy. Be sure you get some counseling now to discuss how you’re going to manage your finances. What level of comfort do they have? The husband figures that he’s young and the next buck’s coming tomorrow. Saving money and incurring debt may be of no concern to him, but if the wife has a comfort zone that she’s better off or more comfortable with $20,000 in the bank, or two months’ worth of household expenses, and wants to start to save for retirement and for college for the kids, they need to resolve that issue before they get married, or they will be seeing me. Because one of the two of them will be seeing somebody, saying, “He spends money like hell won’t have it, or she spends money like hell won’t have it, or he/she won’t let me spend any money and I’m working like a dog and I want to enjoy some of the money I make now.” They need to resolve that before they say “I do.”
They need to resolve any parenting differences. For example, if one wants to raise the children as a devout Catholic and the other one wants to raise them as Protestant, they’d better resolve that before those kids come into this world. They also need to have the issues about how they want to discipline children resolved. If one of them wants to be physical and the other one doesn’t, that’s going to lead to some serious parenting problems.
They need to resolve to be careful about saying things they don’t mean. You get upset, you get angry, you may say something. You have to have a thick enough skin that you’re not going to let everything be devastating. That sometimes is real hard, because you can’t call words back. I haven’t been married to my ex for 14 years, but I can still hear her calling me a “social piranha feeding upon the misery of others.” Meanwhile, she has a brand-new house, a brand-new car, and a brand-new mink coat, so I guess it was okay for her. But you know, those words, they just cut to the bone. So people need to remember that this is the person that is in the most important relationship of my life, and maybe I don’t want to be nasty to them when I say something.
What advice would you offer couples contemplating divorce, besides get a good lawyer?
Well, first, see if you can avoid the lawyers altogether. Consider mediation as an alternative. If both of you can still talk without nothing but venom spewing out, if you can still hold a civil conversation, then it’s a matter of marshaling what the assets are and getting together with a mediator to get those assets divided. Then, hopefully, working with a therapist or counselor on a parenting plan for the children that doesn’t involve the state telling you how to raise your kids. Remember, a judge is just a lawyer who knows the governor. They don’t have any special dispensation on parenting, yet you’re going to submit your parenting issues to somebody that may or may not even have children! Not necessarily the smartest thing that I would want to do.
If I was in this situation, I would not want the court telling me how to parent my kids. If I couldn’t agree with my wife about how to parent them, I would want some input from somebody who really has my kids’ best interest at heart and understands the psychology of parenting, versus a judge who is a lawyer who knows the governor. I mean, the two recent appointees that have just been sent to family court, one was house counsel for Sempra Energy and the other was a civil litigator for Latham & Watkins. Neither of them had ever done divorce in their practice as lawyers, yet they now have 5000 divorce cases under their control and they have to make decisions about parenting. Is that really who you want to make the decisions about your kids? Not that these are bad people; these are good folks that are going to try real hard to do the right thing, but they don’t have all the tools they need because they don’t have all the information. They’re not experts in custody. They’re not counselors, they’re not psychologists. They’re lawyers that are now judges!
If you’re contemplating a divorce, try to avoid the process altogether and consider mediation. If that doesn’t work, consider one of the new growing areas called a collaborative divorce, where the lawyers work together with a psychologist and a financial expert, and the parties all try to reach agreements on everything, with a commitment not to litigate. And if you do litigate, these two lawyers won’t do it for you; you’ll have to hire new lawyers to litigate. It can be a little more expensive, but only up front, because the average cost of a divorce in the United States is $20,000 a side, a lot of money to spend on divorce, fighting over assets.
Is there anything else you’d like to include in this conversation?
Well, just to make sure you get all my credentials right. I’m a certified family law specialist, and I’m also a fellow in the American Academy of Matrimonial Lawyers. The other thing is that, to the extent that couples can avoid the process, please consider mediation. Give it a try. The worst that’ll happen, you’ll spend a few dollars on a mediator and you will reach some agreements. Anything you can resolve between yourselves is always better than what the judge will resolve for you.
How long have you been practicing law, and what percentage of your practice relates to family law, specifically divorce issues?
Twenty-five years, 100 percent.
And you are the past president of what organization?
I just finished my one-year term as the president of the Southern California chapter of the American Academy of Matrimonial Lawyers. I’m also a past chairman of the certified family law specialists Committee of the San Diego County Bar Association.
How has your practice changed these past 25 years?
Well, the law has become more complex in many ways, and it continues to change. In fact, just today the Union-Tribune had an article about how the governor signed into law new gay rights legislation to be effective in 2005. There’s other legislation and case law that occurs constantly which is either changing or interpreting laws that we have to keep up on.
Are most financial arguments over the division of assets or continuing spousal support?
Well, at some point, most of the time the assets eventually get divided, and that’s kind of it. They can still appeal if they think a judge in a trial abused his or her discretion, and that can go on. However, on the issue of support, that goes on and on because they always have the right to request a modification up or down. If somebody gets sick, or if somebody gets a significant raise, or if the settlement agreement does not put a limit on the amount of support, you can always go ask for more, so you can fight about that. Until the children are 18 — or until they’re 19 and still in high school — you can always request a child-support modification. You still have to satisfy a standard though — don’t get me wrong. You can’t just go, “I want more money.” You have to have the right circumstance and all that.
Do some people just keep going back? Do you ever have the feeling that some are still working out their anger toward each other and using the courts to do it?
Yes, although I think there are less of those cases. However, almost every law firm that does mostly divorces will have one or two of those going on at any given time, because somebody is so angry at the other side that it doesn’t much matter what they’re arguing about. They want to carry on the fight, they’re so mad.
Then they do keep going back, but eventually two things happen with those type of cases. One, either it costs them so much money to keep going they can’t afford it anymore. Or, number two, the court sort of handles it in the sense that each time they go to court over something where there’s not an appropriate basis for it, then there are attorney’s fees which are ordered against that person, or attorney’s fees in the form of sanctions against that person, or other types of orders that preclude them from coming to court that make it very — well, you don’t want to go back there anymore because it costs so much money. But that’s a way to stop it when it’s not appropriate.
I think the third thing that can happen is that they just finally give up. Just go, “I’ve had it. I’m not mad anymore. I’m over it.” Then they get their boyfriend or girlfriend or get remarried, move on. That does happen in some cases. Sometimes at the beginning of the case the people are mad; then they eventually get over it. I think the question you’re asking is, in the smaller percentage, do they just keep going and going and going? Yes, a smaller percentage, yes.
What about couples who are contemplating divorce, what advice would you give, besides get a good lawyer?
I can’t tell you how many divorces I’ve done that are the second — take, for example, a woman that I did her first divorce and her second divorce, and her third divorce. And I’ve done many, many people’s second divorce, and I’ve had them tell me over and over again, “You know, I really wish that I would have worked harder on my first marriage. That probably could have maintained itself, but now here I am getting my second divorce, or getting my third divorce, and what happened in my second and third divorces was worse than my first one.”
I have a theory that when people marry a second or third time, they often pick people who are very similar to the first spouse. Have you seen that?
Well, that’s true if they’ve not gained any insight into their own personality, because they haven’t gone to any type of therapy or counseling. If they don’t help themselves, then they’re likely to fall in the same trap or situation that they did the first time. The other thing that comes up all the time — if there were children in their first marriage, and then they get married to wife number two or husband number two, and that second spouse has a child or two, you have all these other logistical problems about how much you’re paying for support, who gets what, when do we see them, when do we visit? And if you throw on top of that any kind of custody or child-sharing dispute, you have placed on this new marriage a serious burden.
Is there anything else you’d like to add to what you’ve said?
By and large the judges who do this day in and day out — it can be tough for them. I commend them. They need to be applauded for the work they do. I wish there were more — frankly, this is something that a lot of people in the state of California don’t want to hear but — I wish that there were more tax dollars for more courtrooms and more judges and more family court service mediators, because only a certain amount of time can be devoted to each case and each motion. I know that when more time is devoted to each case, there are better results. But when our resources are limited, they can only do so much with what is presented to them. Of course, you’ve got a million other requests for money from everybody and their special interest, and, you know, that’s politics. But if you were caught up in this system and involved in it, you’d probably agree with me.