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The more you've prepared for it, the more you've thought it through, the more you've done the calculations, the likely a better result you'll end up with.
So when is it the right time to hire a divorce attorney? Well we're going to find out right now, because that's what we're going to ask the lawyer.
Hi again, everybody. I'm Rob Rosenthal with askthelawyers.com and my guest is New York City family law attorney Chaim Steinberger. Before we get into the questions, I want to remind you, if you have questions to ask about your own situation, just go over to askthelawyers.com, click the button at the top of the page that says, “Ask a Lawyer”, and you can do all that right there.
Chaim, good to see you again as always. Thank you for helping us out again today.
It's nice to see you again, Rob.
It seems like there's different schools of thought as with most things about what to do when you’re headed toward divorce. When do you hire an attorney? I've heard to hire them as soon as possible, and I've heard to wait a little while and do some negotiating on your own first. I don't know anybody who has more experience than you do, so what's your advice?
Well, the reason people say you should wait with hiring a lawyer is because they’re used to bad lawyers, lawyers who look to spray lighter fluid all over the embers and inflame things, and unfortunately some divorce lawyers try to do that. However, information is so crucially important. Most people, even if they've been through one divorce or two, they haven't been through that many and they don't know the law. So it's really important whenever you go into negotiation—all the negotiation gurus teach that before you enter a negotiation, it's better to be armed with the knowledge, to know what the law is. Robert Mnookin of the Harvard Negotiation Project says all negotiation happens in the shadow of the law. So whenever we sit down to negotiate, everybody thinks, “What do I get if I go to court? Now, how do I get a little bit better? How do I give the other side a little bit more so that they negotiate with me so that we don't have to go through a long expensive battle?” So if you find the right lawyer, the lawyer who will guide you and carefully teach you what you need to know and help you strategize, because there's a fair amount of strategy and tactics going into that.
The old joke is if you hate a used car salesman, walk into the lot, point to the biggest clunker, and say how much do you want for that? And then immediately pull out your checkbook and write a check there for that exact amount, and that car salesman will never sleep again a decent night's sleep again in his life, and that's because we have what we call negotiators remorse, feeling like you could have done better. So there's a certain strategy that even if you're going to give the other side what they want, you want to make them work a little bit for it, so that they feel like they've gotten a good deal, they got the best deal that they can, and they walk away feeling good about it; they walk away feeling happy. If somebody walks away from the negotiation and they're not feeling good about it, you're going to have problems down the line.
So it's who you get as a lawyer, somebody who's smart, intelligent, and wise, who can teach you the law. Too many people think, “Oh, I know what the law is. Here is what the law is.” There are so many nuances, even the simplest case has got a myriad of complicated nuances and issues; as for being able to navigate them, once you know what the law is, then we can sit down and talk. I've served as a negotiation coach for those people whose spouses didn't want to get a lawyer, and I said, “Okay, here's what you do.” But most people prefer and I like doing a four-way, me and my client, opposing counsel and their client, and we sit down and we talk; so long as I can be civil, courteous, and respectful to the other side, I can deliver the messages that need to be delivered. So bring in a lawyer early that can teach you, but bring in the right lawyer.
Then what is the danger if the spouses go, “Well, let's talk and work some things out before we get attorneys involved”? What's the danger? What can go wrong there?
The Buddha says that all pain and all suffering comes from shattered expectations. When somebody has an expectation, now it's really hard to get them off of it. So if I have a potential client or a client who says, “Oh, I'll negotiate the first round”, then they say things, and they may not know what the law is; they may not know what's going on, but they say it and they say it casually. The other side now thinks that's set in stone; they think that they have a deal, and once I come in and I teach the client all of the ramifications of how that would play out in the real world, and now they want to back track off of it, it becomes a lot harder to undo that.
So I recommend people go in and listen; take notes; say, “Let me see if I understand…”; do what we call active listening. And if you listen to some of the other programs I've done with you, Rob, I think we cover some of that active listening or reflective listening; we repeat back and say let you see if I understand. Using fairness as a touch stone, saying, “I want to be fair to you and fair to me; I don't want to take advantage of you. Tell me why you think this deal that you're proposing is fair, and I'll think about it.” But don't make any commitments, and don't say anything.
You can listen as much as you'd like, but before you start talking you should know what the law is, you should know what your end game is, and you should have a strategy on how to get there. So sometimes you may need to keep something even though you know you're going to give it up, but there's going to be another difficult issue, and so you might want to give up that issue in order to get that issue. So the more you've prepared for it, the more you've thought it through, the more you've done the calculations, the better result you'll end up with.
So does getting an attorney on your side early in the process, at the beginning of the process, help keep you from saying the wrong thing that could hurt you down the road, right?
Right. It gives you the knowledge that you need to know. I had somebody walk into my office saying that she gave up her pension 20 years ago at the divorce, even though it was a 40-year work life. And I said, “What did your lawyer say?” And said, “Well, we didn't have lawyers. We had a mediator.” And I said, “Then what happened?” Her husband said, “Well, I worked for it. I should get it.” And she thought that that was the law without recognizing that, at least in New York State and probably many other states, anything earned during the marriage, including a pension, even though it's paid out after the marriage, because it's earned during marriage belongs to both of them. So people make these concessions, but they don't make them knowingly. They don't know what the implications are; they don't know what they're entitled to by law, and that's what I'm afraid of. In the moment somebody sort of gives it up or agrees to or gives the impression that they are agreeing to something, then you've created an expectation on the other side and now undoing that expectation can take twice as long, and there are hurt feelings, and now they may go to trial just because they're upset. So you never want to shatter expectations. You want to prevent giving expectations. Listen as much as you want. Act cordial and civil. Use fairness as your touchstone. Assure the other person that look, our children will always look to you as the other parent; I will always be their mother or father, you will always be their mother or father, and I will treat you with courtesy and dignity, sort of giving them the assurance that it's going to be a fair process, so the tempers can come down, the people can calm down, so that we set the table so that we can have a productive negotiation.
So gonce you hire an attorney, Chaim, does that mean you can't have any of these conversations with your spouse without attorneys present?
So absolutely hire an attorney, but hire the right attorney. I know you and I have discussed this about how to find the right attorney, but once you have an attorney, take your guidance from your attorney so that you understand what you're going to be doing. You don't ever want to set up parallel negotiations. So if I'm negotiating with your spouse's client and you're negotiating directly with them, there's a strong probability that you’ll undo all the work that I'm doing. So you want to have one channel of negotiation. Talk with your lawyer, find out whether it makes more sense for you to negotiate directly with your spouse or for the lawyers to negotiate directly and be wary. Some lawyers know what they're doing and their master negotiators, some lawyers don't and all they know is bluster and being mean and nasty and aggravating, and they make it sound like that's what you have to do, but there is a better way.
I think that may have answered my next question, but it seems like sometimes somebody says, “Oh, you got a lawyer. Okay, you want to fight then.” Hiring a lawyer, the right lawyer, early in the process does not mean the whole process can't be civil and not a fight, correct?
That's exactly right. I came on late in the process of a woman who came to me and said that the mediation is perpetuating her husband's abuse of her, and me being a mediator for a quarter century, I was incredulous. I felt like, “That can't be true.” But the more I worked with her, the more I saw she was exactly right. Every time her husband—her husband was a big muckety-muck, and she was how we say a simple woman—and every time her husband made a proposal, the mediator said, “Well, that sounds reasonable. Why don't you agree to that?” And so when I came into the case, I sent the husband the letter saying, “Dear Mr. Smith, your wife has retained me to represent her, but let me assure you, I'm happy if you want to continue mediation; we can go to mediation and we can use collaborative law, or I can negotiate directly with your lawyer. Whatever your choice is we are happy to do that. This doesn't have to be nasty.” So it's a question of tone and tenor. I've had too many people call me and they say, “Oh, I have to get a lawyer.” I'm like, in America, getting a lawyer is not a bad thing.
My first day of the first year of law school, my professor said, “Why do we have this?” And I'm like, “Oh, oh! Pick on me!” And he looked at me and he said, “Okay.” And I said, “To do justice.” And my professor goes, “Nah. It’s because in 2021 we can't afford to have the Hatfields and McCoys living across from each other in the apartment buildings and shooting at each other and killing the pedestrians walking by. We need a system to resolve disputes. So instead of rolling up your sleeves and meeting in the alley and having a fist fight, we now go to somebody hopefully schooled in law, hopefully somebody wise, and we have a body of law that says, ‘Okay, these are the rules,’ and we negotiate it out.”
Going to the legal system to negotiate your dispute is a good thing, it's not a bad thing. I mean I'm okay if you have a wise Uncle Joe and you both trust him, then you can both say, “Hey, let's go to Uncle Joe; whatever Uncle Joe decides.” However, I would say it's better for you to have a lawyer even when going to Uncle Joe that can prepare your case and fashion the argument instead of just walking in and giving an off-the-cuff argument and letting Uncle Joe give you an opinion that just springs to mind. I'd rather represent the facts in such a way that we make a compelling argument for your case, and then Uncle Joe thinks about it for a while and says, “Okay. Here's the wise answer.” But we can do an Uncle Joe. We could use a wise man and a woman in a black robe who doesn't know either of us.
Going to court is not a bad thing, and hiring a lawyer is not a bad thing, but again, it depends who the lawyer is. You don't want a lawyer who's going to inflame the issue. You want a lawyer who is going to try to work things out, who's going to use the best practices of negotiation in order to resolve your dispute quickly, amicably, and in a way that doesn't further traumatize your relationship, especially if you have children. The children are always going to be there, and the effects of how you divorce is going to affect the children in the next 40, 50 years, so there is a better way.
Great advice, Chaim. As always thank you so much for answering our questions this time, I appreciate it.
You're very welcome. It’s my pleasure, Rob.
That's going to do it for this episode of Ask a Lawyer. My guest has been New York City attorney Chaim Steinberger. Remember, if you want to ask questions about your specific situation, head over to askthelawyers.com, click the button at the top of the screen that says “Ask a Lawyer”, and it'll walk you through the easy process right there. Thanks for watching. I'm Rob Rosenthal with AskTheLawyers™.
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