In most instances, people who take the time to visit a website like this are either enmeshed in domestic relations problems or trying to be supportive of those who are. No one likes being in this position but statisticians tells us that this is a pretty common event in modern society.
Folks in the “system” are often frustrated. Very few people want their relationships to fail or to fight over how they will allocate their income, their assets or how and when they will see their children. But that is what occurs when relationships fail.
When these sad events occur, people tend to want advice. Of course there is lots of free advice from friends, family, co-workers, and people at the gym who passed a bar exam in Indiana ten years ago and worked briefly for a law firm doing securities work in Indianapolis. Divorce lawyers who really do this work charge what some would call an unfair amount of money undoing the damage of free advice. “No, you are not automatically divorced after ninety days or two years or whenever.” “No you are not entitled to live the frivolous lifestyle you and your spouse had for the last three years of your marriage.” “No, you don’t always get one year of alimony for every three years you were married.” Of course, you were getting much better free answers from your friends who “only want to help.” In 2008 when your financial adviser told you that Citigroup was a buy at $60 a share, he wasn’t out to ruin you. He just didn’t know better.
Almost like the sixth sense, people will reach out for free advice when intuitively they know that “professional” advice won’t be what they want to hear. What does a client want to hear? They are entitled to live the lifestyle they enjoyed during the marriage. They want to hear that a father who has left a mother for another won’t get an overnight visit with his child. The person who wants the divorce must pay the other spouse’s legal fees. So, check with mother, sis or your brother in Istanbul first before checking with your lawyer.
Anyone involved in the divorce process can tell you it is frustrating, time consuming and expensive. For most, this is absolutely true. But part of the reason it is frustrating, time consuming and expensive is because clients (a) don’t like what their counsel is telling them and (b) tend to ignore advice they don’t like because they are getting free advice they do like.
This leads to today’s topic; the unasked question. It comes out of an experience last week where a client’s former spouse sued him to increase the child support. While we did not know her income (and the payee’s income has very little to do with the child support amount), our initial analysis was not only that support would not increase, it would most probably decrease. At the support conference on the modification we exchanged data and the hearing officer came back with a recommendation that did involve a five percentage increase. We reported all of this to our out-of-state client. And while we reported that we did not agree with the conference officer’s analysis, the recommendation was not completely off base and merited consideration particularly if one looked at the cost of the next stage of litigation. The client saw the point and wrote back that much as he loved his lawyer, he did not feel impelled to fight over principle given the dollars involved and that he knew that such a fight was only going to adversely affect their shared child, who would be caught in the middle.
It’s not always that easy. But what is frustrating to lawyers is that their clients will often tell them things like: “He/She will never get overnight visits given what has happened.” Or “She will have to pay child support based on her last year’s reported earnings” even though she was part of Merck’s recent reduction of 9,000 employees.
The great unasked question is: “What is the likely income if we litigate?” That is often a complex question with many moving parts. But it is a question best posed to your own lawyer with the companion question of: “What is the estimated cost to litigate.” Today, in many instances, the uncertainty of “winning” coupled with the relative certainty of investing in litigation make the question vitally important, and thus, well worth asking.