The Divorce Escalator

Are you stuck on the Divorce Escalator?  So many people get caught up in a litigated process for their divorce.  But what happens when the attorneys and the "system" takes control of your case?  You become a passenger and lose all control.  Tune in with Financial Divorce Consultant Mark Hill, CFP®, CDFA®, Psychologist Scott Weiner, Ph.D., J.D. and Attorney and Mediator Shawn Weber, CLS-F for a discussion about the horrors of the divorce escalator and how to get off by taking control of your case.

The Three Wisemen of Divorce are divorce experts Mark C. Hill, CFP®, CDFA®, Financial Divorce Consultant; Peter Roussos, MA, MFT, CST, psychotherapist; and Shawn Weber, CLS-F*, Family Law Mediator and Divorce Attorney.

Transcript

SPEAKER_01: 0:00

Welcome to the Three Wise Men of Divorce, Money, Psych, and Law podcast. Sit down with the California divorce experts, financial divorce consultant Mark Hill, psychologist Scott Weiner, and attorney Sean Weber for a frank and casual conversation about divorce, separation, co-parenting, and the difficult decisions real people like you face during these tough times. We know that if you are looking at divorce or separation, it can be scary and overwhelming. With combined experience of over 70 years in divorce and conflict management, we are here for you and look forward to helping by sharing our unique ideas, thoughts, and perspectives on divorce, separation, and co-parenting.

SPEAKER_00: 0:47

So greetings, folks. Today, the three wise men of divorce want to talk about what we call the divorce escalator. And the divorce escalator is the process that you tend to get into when you file with the courts and go through the traditional adversarial process. As I say, it's an escalator that goes down, not up. Unfortunately, you don't control the pace of it, but it is never quick. And candidly, right now, it is stuck shut. and the destination is lower. So we wanted to chat about other alternatives that we have out there at this time of court shutdown.

SPEAKER_01: 1:28

Yeah, thanks for that. I like the analogy of an escalator. I remember as a kid trying to go the wrong way on an escalator. You don't get off. You ever try to do... I know you did it, Scott. Have you ever tried to do that?

SPEAKER_02: 1:45

Some days I still think I'm trying to do that. But I think that Mark's initial discussion is very apt with one exception. The process goes down, but the costs go up. The stress goes up. The intensity goes up. And even we were recently talking about a case in which Things started out in a reasonable, mediated kind of way. And by one of the clients taking a hard position unnecessarily drove the other client into, well, I guess I have to get on this escalator. And I think, Mark, not to hammer your analogy here, but it wasn't an escalator. It was an elevator. It went straight to the basement. and it crashed on arrival, with one bad choice, you can wind up taking something that's difficult and painful and turning it into, I think as we were talking about earlier, burning down the house.

SPEAKER_00: 2:59

Yeah. Well, I think that's the reality, isn't it? That people are not always aware that they do have options at this time. If they're facing divorce, usually something has... triggered it. And it can be a scary event. And I don't mean necessarily scary physically. It can be scary financially. It can be scary emotionally. And when you're fearful, you want what? Protection. So what kind of attorney do they reach for, Counselor Weber?

SPEAKER_01: 3:31

Well, they go for the person with the big billboard that says that they're going to fight for you. right you know we've seen those uh billboards and ads where you see a scowling attorney usually they're in front of the bookcase there's usually a gavel or scales of justice somewhere in their motif and and they want us they're an aggressive attorney who's going to fight for you and all of these words sound nice when you're scared and you're looking for a knight in shining army the problem is you can hire somebody to fight for you but then it turns into their war and you're just a passenger and i saw that happen you know i i do a lot of settlement conferences where i sit with attorneys and i've seen that happen with attorneys where the clients are just sitting there wide-eyed don't know what to do And the attorney is pretty much telling them what they can or cannot do. And it's very aggressive. And sometimes it gets very personal between the attorneys. And the other thing that happens with attorneys firms, and I know this because I used to be involved in litigation firms, is you have standard operating procedures. A happens, then B must happen. If B happens, then C must happen. And it's this cascade of events, just like on the escalator, where it's just going and you're a passenger. It's very hard to unwind them.

SPEAKER_00: 4:48

And every event is a billable event.

SPEAKER_01: 4:50

That's the name of the game is the billable hour, right? Which, you know, I support billable hours. If people are spending time doing work, they should be paid for it. But the problem is what work, you know, and that's where I have a problem with just applying standard operating procedures to every case is, you know, there's an affirming town that used to, they would send discovery on every case. And they would send it to a 30-year housewife requesting all documents that she has regarding any business entities in her possession. And this woman never had a job outside of the marriage, her entire marriage. And clearly what it was was an attorney just simply checking a box, sending a form out. But what this causes is it costs money to send that out. It also costs money for the wife's attorney to respond to it and say, well, she never was in a business, so she's not going to provide anything about that.

SPEAKER_00: 5:47

So that's an advantage of having a neutral financial working on your case, because my role is to be the one to gather all that data, help the couple agree that this constitutes their marital pie for future division, and then let the process move on from there.

SPEAKER_02: 6:06

More generally, Counselor Weber, when a person comes into a mediated situation, can you describe the difference in the process relative to that adversarial, every box needs to be checked? How does the consulting attorney mediator decide what needs to occur and what doesn't need to occur?

SPEAKER_01: 6:31

Well, the parties decide. That's the power of it. I mean, you can do as much discovery as you need to do in mediation, but you only need to do what you need to do. And the nice thing is I found that people are more forthcoming in mediation than they are when they're being compelled to produce documents. And I think I've said this on a previous recording is that we're taught in law school to produce as little as we possibly can and still be in compliance with the law. when you're in mediation or another process like that and it's more voluntary it's more open people aren't under the gun they're more 14 and then they'll work with someone like mark and produce the documents i've heard people say well i don't like mediation i've heard attorneys say this i don't want to have my clients go to mediation because they can't do discovery which is just baloney you know you can why would you agree to something if you didn't have all the exposure that you needed to make the agreement you know so you can still do that it's just we're not doing these very expensive form of processes that cost a ton of money. You don't need to do a deposition to sit down and ask somebody, well, what happened to that money? And show me where it went. What about kids? I had one the other day where people were just freaking out over their kids, and their attorney told them, you need to go to court and take these kids away from this mother, and you need to do all these awful things to this woman, and I'm going to fight for you. What does that do to a family, Scott?

SPEAKER_02: 8:02

It's almost indescribable. I mean, it's like ripping and tearing. If we're thinking in terms of ripping and tearing versus nice, neat folds and partitions would do. I mean, unless you got to remember that in visitation situations, even incarcerated criminals get visitation. It's the truth. This is plain truth. We try as best we can to imagine the long future of the relationships of parents and children that these are your parents and we try to organize this division of family into such a situation wherein the kids have access to both parents. We try to get the parents to agree about how the handoffs are going to go, about how as little as possible of the conflict is going to be played out with those children or with the children involved. I'm sitting here staring at a document that my wife, who's also a therapist, and I put together maybe 30 years ago, a co-parenting primer, what to do and what not to do. And these are, I mean, anybody with common sense and good intentions could pretty much produce this document. You look around, you see well-mannered, easygoing families taking care of each other. Everybody knows this stuff. But when they get into burning down the house and riding that elevator and that escalator, often with the cables cut on the elevator there, it somehow then makes sense to them.

SPEAKER_00: 9:49

It's all they've left to fight about. It's the only thing left for them. There's the financial... thing is done, barring if the supporter changes circumstances, you're not going to revisit that. And you're dissatisfied with that process because you felt like you got ripped off. Not what you were promised. Everyone, either side, both sides were ripped off. Yeah, exactly. Well, think about it. You know, if I'm going to get a divorce, I want half, right? At the very least, I want half, darn it. Well, I'm not, you're not going to end up with half. Even if you get half, the attorneys and the other professionals are gonna take a chunk. So you're gonna end up with less than half. So how's that going to feel?

SPEAKER_02: 10:32

And your lifestyle is going to come down probably a notch because you got two households, not one.

SPEAKER_00: 10:38

And so a dissatisfactory process, you leave it feeling frustrated and angry. You can no longer direct it at the attorney on the other side because they're gone. So who's left? Your ex-spouse. And the only way to get at your ex-spouse perhaps is through the children at this point. And that's the tragedy of it. So, Mark, do you mind if I get a little

SPEAKER_01: 10:59

personal with you? You may. You told a story one time about going to court and how it made you feel when you were in the courtroom when you were done.

SPEAKER_00: 11:08

Yeah.

UNKNOWN: 11:08

Yeah.

SPEAKER_00: 11:09

I literally, this was a short marriage and my second divorce. We had no children. We were married for three and a half years together, about five or so. I was doing very well financially. I'd just bought a big house in a nice area near the beach. And within six months we were separated and it did not go well. We both hired attorneys. We ended up going to trial. It was a one day trial. I walked out of that trial and said, I was violated by this process. I ended up having to pay half of my wife's credit card bills and she didn't have to pay mine because the judge dismissed it and refused to go back and look. And it was all in the data. Okay, it was all in the report. I'm a financial guy, we had it, trust me. I got none of that. So I walked out feeling totally violated by the process. And candidly, it's what drove me and attracted me to working in alternative dispute resolution because I thought there was two things. One is the process felt bad, but also candidly, the attorneys weren't very good with the numbers and the judge was worse. And I thought this has got to be done better. I mean, I was so organized and I went in and it didn't matter. It was irrelevant.

SPEAKER_01: 12:29

I can't tell you how many people they have this myth of justice in their head. I'm going to go to court. And if the judge can just hear my story, everything's going to be fine. And what they don't understand is this judge doesn't care about you. You're one of 20 people he has to see that day. And he won't remember you when it's over. I

SPEAKER_00: 12:53

have heard the story of the judge where they had a couple fighting over custody of their child. demanded of one of the husbands, sir, do you love your children? That's my story. Your story. Then tell it, because

SPEAKER_01: 13:06

it's a great story. Oh, yeah, this judge points it. We're fighting over which school the kids are going to go to, which very expensive private preschool. And I am not joking when I say that one of the preschools that we were looking at was more expensive per year than my JD was. And... remember the judge pointed his finger and he was kind of known as a fire breathing dragon anyway this guy he points his finger at my clients do you love your children points his finger at the other person do you love your children well you know of course both of them love their children he's well i don't love your children and that kind of you know getting off the divorce escalator is the point here you know You want to do everything in your power in your divorce process for the parties to remain in control of their decision-making instead of letting a stranger in black robes decide. There's ways to do that. So we've been hinting that there's these alternative dispute resolution options to get off this escalator. So let's say you're in the middle of this and you're on the escalator or you're on the free-falling elevator going to hell. What do you do?

SPEAKER_00: 14:14

I'm stuck, right? I got an attorney. I've given him a retainer. I can't get out. I'm done. I already paid this

SPEAKER_02: 14:19

much money. Exactly. So, Sean, what do you think

SPEAKER_01: 14:24

those

SPEAKER_02: 14:24

people are?

SPEAKER_01: 14:24

Are you asking me? Well, sure. Well, I think number one is, and this is actually, it's in the legal ethics codes, both for the ABA and newly adopted in California, and that is, Guess who's in charge of your case when you go to court? It's you. It's not your attorney. So your attorney doesn't get to say, I'm not going to let my client do X, Y, and Z, or I'm going to make my client do this, or you have to do what I say. If you have an attorney that's saying those kinds of things and you're not comfortable with it, you have the power to say, you know what? Thanks, but no. And if you're not willing to do that, you need to know there are a lot of attorneys out there that are better than your attorney. and you can change attorneys, it's not gonna be that big of a deal, especially if you go into an ADR process. ADR

SPEAKER_02: 15:20

for you folks,

SPEAKER_01: 15:21

Alternative Dispute Resolution. Or sometimes you hear Consensual Dispute Resolution, CDR. Both of those terms are interchangeable.

SPEAKER_00: 15:30

And we hear mediated divorce, collaborate, collaborate divorce. We have different terms, but the main thing is that you are making the decisions but with the resources you may need around you to make informed decisions

SPEAKER_01: 15:48

so a couple that i worked with they came to me they were working with they were each working with two of the sharkiest sharks in town and they were on an escalator they felt like they were trapped they couldn't believe how much money was spent to not even get to the first hearing it was it was five figures uh what was spent and there wasn't even one hearing yet not one disposition of anything And so they came to me saying, please rescue us. But what they had done is they talked to each other. And they said, you know what? This has sucked. This has been a really hard environment. I've been very angry. You've been very angry. But maybe we need to do this a different way. And they were able to get on the same page, at least. They knew they needed to get out of this legal process. But then what was hard is there was all this discovery, formal discovery offers that were out there that had to be answered or there were penalties. They were struggling getting their attorneys to just pause the discovery. And I finally just said to them, I don't want to get between you and your attorney, but you're in charge here. You can tell your attorney, stop discovery or pause discovery.

SPEAKER_02: 17:06

And so long as both clients tell their attorneys that, somewhat simultaneously

SPEAKER_01: 17:12

yeah well i ended up finally having to do a call with the attorneys i got on a call with the attorneys i was mediating between the attorneys and i finally got them to reassign a stipulation that extended uh deadlines on all discovery pending mediation

SPEAKER_00: 17:27

you know that you raised such an interesting point sean the money that is wasted agreeing about what pi is to be divided is absurd in this process because you've got two firms one on each side discover trying to discover with two different limited pools of knowledge about the financial estate that don't always overlap so you end up with two different views of what the marital estate looks like and then you start arguing about that and you can spend a fortune before you ever get to deciding how to disperse one piece of it

SPEAKER_02: 18:03

and people in the professional realm will avail themselves of the aspect of doubt of the veracity of somebody else in order to expand and expand and expand. There are exceptions, yes. There are times when there is a huge amount of hidden capital in some estate somewhere where somebody has been doing that over a period of years where you do need essentially forensic analysis to find those elements but when people come into mediation and agree to divulge for the sake of saving you know 30 40 50 percent on the cost of this division of their lives you know what it's very it's worthwhile for them to simply tell the truth

SPEAKER_01: 18:54

i i'll play devil's advocate on this what do i do i i can't you know i know the other person is lying is not telling the truth i have to do discovery

SPEAKER_00: 19:03

Okay, well, so do you think somebody's more likely to be honest with their attorney sitting beside them being formally deposed in an environment where they have been told to answer yes, no, or I don't recall? Or do you think you'll get a better response if you are able to sit down with somebody and explain the realities of how you see the estate and have that done from two sides so that the third party can explain it. And by the way, it's subject to the same court penalties you are disclosing under penalty of perjury, I understand. I'm not a lawyer. So therefore, the rules are the same. The only difference is you're not gonna be deposed. You still have to be honest.

SPEAKER_01: 20:00

Yeah, in California, at least, you have these very strict disclosure statutes that you have to disclose everything that is material to your case regarding your finances. All material facts and information, you have to disclose it sua sponte. which is a fancy way of saying whether you're asked or not. And, and if you don't, there's terribly mean things that the judges can do to people that get caught in this. So that number one, there is that requirement for a sworn affidavit under penalty of perjury that we've disclosed everything. But what do you do about, you know, the person, maybe they're the outspouse on the finances, Mark, you work with folks like this and they're like, you don't understand. He's so charming. And I'm not going to, you know, he's going to lie. And how do I know that? if he's told the truth.

SPEAKER_00: 20:45

So I call that smartest guy in the room syndrome, where a guy comes into mediation because he thinks he's the smartest guy in the room and he can usually control the boardroom. And he figures that if he can just get these people together, you know, he's met some of these financial people and lawyers, he can handle them. So our job is to disavow that person very, very quickly that they can essentially play the process. And candidly, we've had a few like that and they leave very quickly. These cases blow up fast because they come to the realization that they're dealing with sophisticated professionals who work in this field and have seen pretty much everything.

SPEAKER_01: 21:25

Yeah, I tell those folks also, look, you're gonna have the benefit if we bring a Mark Hill in here of a neutral financial divorce consultant who can look at your stuff and can see if there's any red flags that we need to be concerned about. And then you have the assurance that somebody who is not this other person and doesn't have a dog in this show has at least looked at it. And then if you feel like there's some red flags that you need to chase down after all of that, Um, there's nothing to stop you from doing it. And in a mediation, I've, you know, we've brought in business appraisers, forensic analysis. I mean, you don't have to agree to anything if you haven't received the information, right? It's never the situation that I'm going to sit there and beat somebody and say, no, you got to agree to this when you haven't had a chance to find out what you need. I might ask, what is it that you need and, and how can we get it to you? You know, And sometimes you don't know what to ask. And that's why somebody like you, Mark, can be very helpful. So what about on like the parenting side, Scott? Like, gosh, I'm really worried. I don't think this person should be around my kids.

SPEAKER_02: 22:38

One more thing I want to say about the financial

SPEAKER_01: 22:40

thing. Yeah, please, please.

SPEAKER_02: 22:41

Which is that, you know, in mediation, if somebody does come in with that, I'm the smartest person in the room sort of syndrome going on, I will appeal to that smartest guy in the room reality and I will say to them, I can tell that you're very fluid with this and that you're very capable in this manner. Understand that you need also to understand that if you use your capabilities to commit perjury at this very important juncture, the penalties to you and not to the other person are going to be resounding and perhaps extend over a period of time. So I would urge you to use whatever intelligence and financial capability and understanding and memory that you have going for you to detail out all of the value of whatever you've done with parts of the estate. This is part of the law here. So use that smarts in your best interest because if you don't, you know, the judge will have your, aft side, so to speak. Now, you're asking about the families. What about this? What about the...

SPEAKER_01: 23:57

Well, yeah, like I'm worried, you know, he drinks too much. I don't want my kids around a drunkard. I don't think I can do mediation because he does too much. He drinks too much.

SPEAKER_02: 24:09

Okay. Again, as you did, I'm going to do devil's advocate at first. There are circumstances in which you really don't want your spouse alone with those children because that person is literally trashed anytime she or he has the opportunity to get that way. All right. Then basically you can bring that up in mediation. You can say, all right, here's a problem I have. Susan or Frank or whoever you are, you know, you and I know that, you know, under stress, even because it's Tuesday, you're going to be in an altered state and I don't want you alone with the kids. What's happened in our marriage is partially falling apart because of that. But the other thing that goes on is that while we've still been married, I was always there while you were in an altered state and I'm not going to be there now. So Susan or Fred, you have a couple of options here. Either I'm going to be pushing for supervised visitation or you're gonna get sober, but we can talk about that in this room. I mean, you don't need to go and hire the guy on the billboard in order to address this because basically you've got the same outcomes whether you're working with a mediated situation or with the shark. They're

SPEAKER_01: 25:37

gonna say the same thing. I'll disagree with one thing you're saying there. We're having the same outcomes. I think you could have better outcomes. And I've seen situations in a mediation where the spouse, where we have a concern about substance is willing to agree to testing regimes and things that would never be ordered by a judge, uh, like hair follicle drug tests, which would never be ordered by a judge. They only, they only, uh, make people do, uh, urine tests and, and you could, you can get very, very, uh, strong orders from a mediation that you may never get in a court and it might and whatever you come up with it's going to be your plan right

SPEAKER_00: 26:19

and clients don't understand that there's a basic public policy belief that both parents should be involved in the raising of a child in california and so they tend to think if the other spouses behave badly at all at any time that that may be justification for them excluding them from their child's life and right That doesn't happen a lot, does it, Scott?

SPEAKER_02: 26:41

No, no. Well, as I said, incarcerated parents get vindication. The default picture in the law in California starts at 50-50, and you really have to make some seriously intense arguments to knock that. Go ahead, Sean.

SPEAKER_01: 27:00

I was going to say, I mean, there are some people that are, like you said, that are genuinely abusive, but jerkiness, being a difficult person, Being obnoxious, being mean does not mean that you lose your kids.

SPEAKER_00: 27:15

Having different religious views.

SPEAKER_01: 27:17

Yes, there's that. Or he went to McDonald's and got fries for these children. And I don't think that's healthy. I've heard that one. Or she shops at Vons instead of Trader Joe's. Yep.

SPEAKER_00: 27:34

Battles over vaccines were a big thing a few

SPEAKER_01: 27:37

years ago. And, you know, one judge put it to me this way. He said, you know what, I had this morning, I had a case where we were deciding whether the child should stay with the father. The father only, he had three walls. He didn't have four walls. The fourth wall was a plastic tarp. And guess what? He still had visitation with his kid.

SPEAKER_00: 27:57

Wow.

SPEAKER_01: 27:59

Okay. So, I mean, they're seeing the worst of the worst over at Family Court. And I think a lot of folks get in there and they think, well, my situation is really horrible. It may be awful for you and you may be experiencing something terrible. I don't mean to sound patronizing, but you need to understand that the judges are seeing far worse than your situation in most cases. And I'm not trying to say that folks aren't in bad situations. There are those bad situations, but there's things that judges will remember and where there's really honest to goodness abuse, and then there's things that judges are gonna be like, you know what, if I incarcerated, or if I prevented somebody from having visitation with their children for every situation like this, then no one would see their kids.

SPEAKER_00: 28:45

And we know, Scott, don't we, that it's really important that children go up with a relationship with both parents, if at all possible.

SPEAKER_02: 28:52

I would argue that as long as those parents are alive, the children is going to grow up with a relationship with them of one kind or another, even if they're separated from them, then their relationship with that parent is open question, ambiguity. Most typically, if children are separated from a parent, they will tend to wonder something about, well, I wonder if that parent doesn't care about me, or I want, you know, it brings all kinds of psychological, dynamics of the children to the surface and in painful kinds of ways. The basic default position in the California law of 50-50 I think is quite wise. I

SPEAKER_01: 29:40

wouldn't say it's a default of 50-50. But it's a default of joint custody. It's a starting point. Yeah, yeah, yeah. And you see it. We're seeing it a lot more than we used to. We're getting towards the end of our podcast,

SPEAKER_00: 29:50

guys. How shall we summarize this? We can help you get off the divorce escalator if you're on it. We can help you if you are considering divorce ever getting on that escalator. And... I think what I would be a good idea to hear from you, Sean, because I know you recently had an update from the courts about how backlogged everything is going to be through the courts. And the great thing about what we've been talking about is we're not dependent upon the court calendar. So what is the backlog in San Diego at this time?

SPEAKER_01: 30:26

Well, in San Diego, they know for a fact that as soon as the courts open next week after Memorial Day, it'll be 9,045 hearings in San Diego County alone that will need to be rescheduled. They're doing a soft open, which means there's going to be a drop box in front of the courthouse for you to do your filings and things are going to be slow. There's just no way around it. If you want to get a new hearing, it'll probably be um at least by the fall probably later if you wanted to have a trial you're looking at years before you would actually get a trial so so we can resolve things with mediation out of court way quicker and the judges are thrilled if you can take it out of their hands and remain in control of your case anything scott well

SPEAKER_02: 31:12

it's it's illogically I mean, under the duress of divorce, people get illogical because of the fears and because of often the intensity of the circumstances surrounding this. But the same laws apply. So you don't get a better deal in court because you've got the law on your side. You still have the law on your side here in a mediated situation. And you have the option of using the professionals to help you talk to each other in a, not so much conciliatory way, like you're giving away things, but, you know, we'll help you reason this through to come to the same or a better set of decisions than you'll get in court faster. And at, you know, anywhere from one fourth to at the very most a third the expense. It's a good idea folks.

SPEAKER_01: 32:12

Agreed. So, to get a hold of you, Mark, how would somebody reach out to you?

SPEAKER_00: 32:17

Easiest way would be to look up the website for my company, which is Pacific Divorce Management, pacdivorce.com. P-A-C-D-I-V-O-R-C-E dot com.

SPEAKER_02: 32:28

And

SPEAKER_00: 32:28

Scott?

SPEAKER_02: 32:29

I work in a very simple practice. People call me directly on the phone. I answer my own phone. 619-417- I'm in Solana Beach. As I say, I answer my own phone.

SPEAKER_01: 32:48

And to reach me, Sean Weber, for mediation or for legal help, it's 858-410-0144. Or just check out my website, WeberDisputeResolution.com. WeberDisputeResolution.com. Thanks for listening to another episode of If you need help with your specific situation, feel free to schedule a time to speak with one of us for a personal consultation.