The art of splitting up: Best practices for high-net-worth couples who want to separate amicably
High-net-worth couples who divorce have one option that couples with less resources lack. If the desire is there, the lucrative spouse can afford to fight every step and any aspect of the divorce.
The spouse can hire several lawyers, forensic accountants, psychologists, appraisers, vocational evaluators, and private investigators — to name just a few of the experts available to them — and amass an army against the other spouse. It is a luxury enjoyed by only a few for whom cost is not a factor and who are driven by raw emotions to punish the other spouse. The divorce becomes a stomping ground for the spouse’s sense of “justice,” which often translates to vindication, revenge, and to instill financial or emotional pain onto the other spouse.
Yet, there is a cost to this approach far beyond the lawyer and expert fees, a cost to that person’s own mental well-being and very often the health and development of their children. This scorched-earth approach means that the person will be involved in years of litigation with much of that time consumed with lawyers and experts scrutinizing, evaluating, and critiquing their lives and past decisions. They will be judged as a spouse, parent, employee, and person. They will live in a constant state of anxiety, stress, uncertainty, and often bitterness and anger. This is what money can buy them if they wish to pursue an adversarial divorce.
There is a better way. A couple separating can make a commitment to divorce amicably. What this involves is putting aside their hurt feelings, emotions, and even guilt, and approaching the division of their assets, debts, and income much like a business transaction. This may seem unrealistic and clinical for the end of a marriage, but this is, in fact, what the court would do in a divorce trial. Wisconsin abolished fault-based divorces, which means the court is not interested in knowing the reasons why the parties divorced, nor will they assign blame to either spouse for the divorce occurring.
Instead, we have legal presumptions and statutory factors the court will consider in how to divide the property and determine maintenance (i.e., alimony) that has nothing to do with who lied to whom during the marriage. With respect to the children’s custody and placement, the overriding legal inquiry is what is in the best interests of each child, which has little to do with whether one spouse cheated on the other spouse. This is often a harsh reality for many divorcing couples to accept. Yet, understanding what is and is not relevant in a divorce proceeding is important for divorcing spouses while working toward an amicable resolution.
The first step toward an amicable divorce is to select the right attorney. Some attorneys are better at resolving conflict and reaching an amicable resolution than others. The public has a perception of attorneys based on television and movies, which portrays the attorney in the courtroom aggressively questioning the other party into submission on the witness stand.
Although that is a valued trait in the context of litigation, it does not serve the client well if the objectives are to avoid the courtroom and to co-parent with their former spouse after the divorce. In contrast, some people may perceive an attorney who recommends cooperation and compromise as weak and less effective. An excellent attorney is one who can litigate when necessary but recognizes the benefits and value of coming to a resolution outside of the courtroom.
A lawyer serves a dual role to the client. The first is to advocate for the client. The second is less riveting and rarely portrayed on television but is just as important. It is to counsel the client about reasonable and fair legal outcomes. In this role, the attorney will sometimes share information that the client does not necessarily want to hear but needs to. It is where the strengths and weaknesses of the case are discussed, and settlement terms are outlined — terms that may not be perceived as a “win” to the client but do provide a fair and reasonable outcome under the circumstances.
So how do you find that right attorney? The best resource for selecting an attorney is from a past client. Most people know someone who has gone through a divorce. Ask that person what he or she thought of their attorney and whether they would recommend him or her. Sometimes, people will not recommend their own attorney, but the attorney of his or her former spouse instead.
If you are not comfortable confiding in others about your pending divorce, then the American Academy of Matrimonial Lawyers offers a directory of family law attorneys who have met rigorous standards based on experience, reputation, and successfully passing both a state and national exam specific to family law matters, mostly involving issues impacting high-net-worth clients.
Finally, it cannot be stressed enough the value of meeting with several attorneys to determine which attorney is the best fit for you. You will want someone who you can trust to represent your interests. Do not worry about offending the attorney by asking questions about the attorney’s practice, skills, and approach to cases. Ask how long the attorney has been practicing law, what percentage of his or her practice is dedicated to family law, and is he or she experienced with the assets involved in your case? At the end of your initial consultation, ask yourself whether the attorney seemed knowledgeable in their responses to your questions.
A person going through divorce may want to also seek out an attorney who is a member of the Collaborative Family Law Council of Wisconsin. Attorneys and clients who participate in the collaborative process sign a contract that commits them to resolving all of the issues in the divorce by settlement only. Each spouse would have his or her own attorney, but other professionals could be involved, as well, including a divorce coach for each parent, a child specialist for the children, and a financial expert. The divorce coach for each party is a mental-health therapist who counsels the party through the divorce process but is different from a therapist in that he or she is not treating the party for any ongoing mental health issues.
Instead, the coach is there to simply help the parent process his or her feelings throughout the divorce case. Similarly, the child specialist is a mental-health counselor who identifies the children’s needs and helps the parties reach an agreement on the custody and placement arrangements that are best for each child. Finally, the financial expert provides the parties with different financial options while trying to meet each party’s objectives.
The collaborative process may seem much like the scorched-earth approach described in the beginning of this article with many different experts. The key distinction is that the experts in the collaborative process are working together as a team to meet everyone’s objectives. The goal is to divorce amicably versus one party prevailing at the expense of the other party.
Collaborative law is not for everyone. First, the couple needs the resources and income to allow them to hire all of these professionals. Second, each spouse should have a solid understanding of the assets and income of the other spouse or will trust that the other spouse will be forthright in his or her disclosure of the assets and income. Third, if there is a significant power imbalance in the dynamics of the spouse’s relationship or if domestic abuse is present, then this presents a challenge for the parties to reach their own agreement. Finally, the clients need to understand that if they are unable to reach an agreement in the collaborative process or if either party seeks a remedy in court, the collaborative process is terminated, and they will need to hire new attorneys and experts to litigate the remainder of their divorce.
If the collaborative process is not a good fit, then arbitration may be attractive option that can be more amicable than litigation in the courtroom. Arbitration takes the disputed issues away from the trial judge in the courtroom and gives that authority to a private arbitrator. Generally, the parties will hire a retired judge who has years of experience on the bench to arbitrate their divorce, although another family-law attorney or expert could also serve as an arbitrator. Each party would still have an attorney and there could be financial and custodial experts involved in the arbitration process, but rather than having everything litigated in the open courtroom, which is in the public record, the disputes are addressed and resolved in private. This may be especially attractive to people in highly visible occupations or business owners who do not want aspects of their lives, wealth, or business affairs in the public domain.
The arbitration process can be as formal or informal as the parties like, which means that the parties could simply have conversations with the arbitrator versus being called as a witness subject to cross examination. Not all family-law attorneys are proponents of arbitration, so you will want to ask the attorney in your initial meeting whether he or she is in favor of this method.
Arbitration should not be confused with mediation, which is another, more amicable way to resolve the divorce outside of the courtroom. In mediation, the parties and attorneys work with a mediator who is often a retired judge, a family-law attorney, or therapist. Unlike an arbitrator, the mediator has no authority to issue any decisions, but is there to help facilitate settlement discussions and sometimes evaluate settlement proposals. If a resolution is reached, a settlement agreement would be drafted and signed by the parties. If a resolution is not reached, then the parties still retain the right to litigate the issues in court. A great majority of family-law attorneys believe in the value and benefits of mediation.
High-net-income people have the option to litigate and litigate heavily if they have the desire, but there is far more value and benefit to divorcing amicably. No matter the amount of income or resources a person has, the cost of an acrimonious divorce is far greater and taxing on the individuals involved than what money could buy. If the goal is to be amicable and fair, the key is finding an attorney who has the skills and knowledge to both effectively counsel and advocate for the client while participating in the various dispute resolution processes available to parties outside of the courtroom.
Christopher Krimmer is an attorney and partner at DeWitt’s Madison office and he has practiced law for more than 20 years, and exclusively family law for over 15 years. You can reach him by emailing firstname.lastname@example.org or calling (608) 252-9205.
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