The Three Wisemen of Divorce: Money, Psych & Law

Divorce Negotiation and Thinking Outside the Box

April 30, 2021 Shawn Weber, CLS-F, Mark C. Hill, CFP®, CDFA® and Scott Weiner, Ph.D., J.D. Season 2 Episode 7
The Three Wisemen of Divorce: Money, Psych & Law
Divorce Negotiation and Thinking Outside the Box
Show Notes Transcript

It's very easy to get stuck in a certain way of approaching things, especially during the challenges of a divorce negotiation.  In this episode, Divorce experts Mark C. Hill, CFP®, CDFA® Financial Divorce Consultant; Scott Weiner, Psychologist, Attorney and Mediator; and Shawn Weber, CLS-F* Family Law Mediator and Divorce Attorney, discuss how creative thinking by "thinking outside the box" can lead to better and happier outcomes.

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You know, I noticed we always do this podcast exactly the same way. You know, we have our intro music, and then we start talking. And I feel like we're rigid. I feel like we're rigid and in a box. What do you think? Yeah, so I think we do. Can we think outside the box for this podcast? I think we can. 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're 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 you by sharing our unique ideas, thoughts and perspectives on divorce, separation and co parenting. Okay, gentlemen, the Three Wise Men of divorce have returned. Welcome Wiseman. Welcome. So can we can we think about thinking outside the box for this? Can we think about how our clients think themselves into boxes as they come into this process? And how we can help them out of them? Yeah, I want to, I want to stick up for him at first though. Okay, so hit me with it. What? Why is it good to think inside the box, it's not so much that it's good. It's that we rely on those structures to help us manage the anxiety of being human beings and, you know, dealing with the kinds of crazy crap that we have to deal with in our lives. But then when stress happens, we tend to regress to a kind of rigidity of that box. Because, you know, we're feeling like we're under assault. And I think a lot of people are in that experience when lo and behold, they come to people like us, when they're dealing with divorce. I think it's very understandable. I think it's, it satisfies a need, everything's falling apart of my life. But here's one thing that I can hang on to be at the house be at the pension, be at some particular outcome. Those things I think, are what tend to sometimes make it difficult to reach solution when people can't see beyond that. So the box is a safe place. Yeah, well, the boxes about safe places. And, you know, when people are in the, in the course of doing the process of divorce, they're also in a fight. You know, and, you know, we try to help them, you know, see that it's possible that there might not necessary it might not necessitate an experience of loss, loss, loss, loss loss, that there is life after this and so forth. But God, it's just so unsatisfying, in the middle of a fight, to just yield and concede. Like, I really want that house, I worked hard on that. I was like this and the other, it's like, she gets it. It's like, God, you just want to set you know, set your feet down someplace and make a stand. And, oh, I understand that. I haven't been there personally, as well as professionally. However, I always say pick your battles. Yeah. Is that the hill you want to die on? That's really the question that often comes down to so having a strategic approach to what the possibilities might be, sometimes is freeing. More than that, I mean, it's downright revolutionary for these people so many times when they, you know, when they when they actually realize, you know, there's there are so many other values to be attained or retained, and, you know, even shared in the course of, of disputing this thing out or mediating it out really well, when when you're attached to an outcome, you're limiting what's possible. So oftentimes, people will come into my office at least, and they'll have a preconceived notion of how they think this should all shake out. And then they'll hold to that at the expense of other alternatives that may actually be better for them. Okay, all right. So what feels to so many people like an unwillingness to either share or flex in terms of something that they feel like they want or need. Those people can wind up in the unenviable position of shooting themselves in the foot, as well. And it's a lack of information. Usually, it's they don't have all the information they need to make an informed decision. Let me give an example. When you have somebody who comes in tethered to the idea of keeping the house, but they don't realize that, or they may have done some rudimentary thinking around this and go, Well, if I give the other spouse everything else, I can have the house. But they're not thinking necessarily in terms of once I have the house, can I afford the house? Or if I decide to sell the house at some point in the future, because it's more than I want, it's too big, the kids are not around anymore. Whatever reason, do I understand that now I'm the one paying all the taxes, that if I'd sold while married, I might not have had that same burden. So it's kind of just exploring fully that a client understands all of the ramifications of the decision they're making. And then if they want to make that decision, that's fine. But I find so often they haven't gotten all that information, they made an emotional commitment very often early in the process to attach to one thing. And that informs the whole case, but they may not necessarily have thought it through. And I've had people change their minds. Well, and I've seen lawyers come in with boxy thinking. And I think that's because they're used to going to court. You know, when you litigate, you really do have a box. Yeah, it's called the family code. And there's not a lot of creativity that can happen, judges can only apply the law, they can't get creative and come up with things that will work better. I always think of the I think I've mentioned this before, on this podcast, the parable of the orange. Yep. where two ladies are fighting over an orange and they come before the magistrate and the magistrate just cuts the orange in half. And what ends up happening is neither of them really gets what they want. Because one, one of the zest of the orange and the other one, one of the juice from the orange. And so, you know, when you go to a court, there's a lot of cutting things in half and not a whole lot of thinking about what's better for this couple. And correct me if I'm wrong shown but don't you sometimes, don't you as a lawyer have to go in with your position and what you want. So you've created one box, the other sides created another box, there's no discussion between the sides, you're saying to the judge pick a or pick B? Or come up with your own idea? Yeah, it's very rare that attorneys will I mean, you have some attorneys that do to practice like I do, and like you do, where they, I call them dolphin lawyers instead of sharks, where they will actually call the other person what really ought to go into your clients box, because maybe my client can give you something from his box in exchange for something he wants. Yeah, you know, and, and so you do have those, but most of the time, what it is, is the the attorneys with the clients become very positional very rigid, and they fight and it becomes a win lose kind of a construct instead of a win win construct. Or what happens more often than not, when the judge announces the decision, it's a lose, lose construct where both of them lose. But you really can come up with situations where both both wins something that they didn't have before they actually get something better than if they would have just cut things in half. So I mean, we had a we had a case not too long ago, mark where we were putting ideas on a whiteboard. And just, you know, one thing that's nice in our process when we mediate and when we do collaborative practice is that we can have a real honest to goodness brainstorming session with people. And what I love about brainstorming is you just Yes, list all the possible ideas, the whole universe of what's possible, even the dumb ideas you put up, and you don't judge them and you don't evaluate them at that point. And that's the key is not judging them or evaluating how often do we put something up? Well, I don't like that. Well, okay. It's just an idea. Let's go to the next idea. Exactly. Yeah. And so sometimes with the house situation, you might come up with creative solutions. Well, the one idea could be you keep the house another idea could be the other person keeps the house. What if you both keep the house for a period of years or what if you rent out the house and both of you live somewhere else or You know, what if what if what if and just come up with all kinds of creative outside the box thinking that might actually get people closer to where they need to go. And that does another thing too, because sometimes when we're evaluating an idea, we realize we don't have all the information we need to be able to fully evaluate it. So it adds to the body of knowledge that we have within the case, that is always helpful when we're trying to assess clients reach solutions. Yeah, and then, and then you can go through an evaluative process, once you've come up with a pretty good list of possibilities, then you can start evaluating the pros and cons of each possibility. And it never fails to amaze me how the idea that no one had thought of coming into the room ends up being the idea that's going to work. And it's actually thank goodness, we had this brainstorming session, because otherwise, we would never have come up with that idea. And this is actually the best possible outcome. I think there's a structural thing that occurs them to in which those people that had thought they would never consider, even for going their original must have list their their bottom line position. The process that we're talking about, it's absolute, almost unfailingly suggests to them. It's part of a reasonable person's process to actually consider other things. In other words, drop down the boundaries of that box that you're living in. And I mean, in a sense, we model that for them, but very rarely will they absolutely adhere to their original box. I've seen, I've done one case with you, Sean, where that did happen, where there was just no give, but mostly, mostly, you know, people that they love each other at some level, they love their families, certainly. And once they are freed from that box and its limitations, possibilities can emerge, then information as in Mark marks, discussion becomes useful. But before before they're before they're even willing to even consider, it wouldn't matter what information they had, which is why the physical process of writing these things on a board, or if we're doing it on zoom on a, you know, notepad that everyone can see is so powerful, because everybody puts ideas up there without judgment. But then the clients get to comment on it. So they maintain their control by so they can literally say, you know, number three, I don't like that. That's something I really can't see myself ever doing. Okay, great. Well, maybe number three is off the list. What is wife think about it? No, that wouldn't work either. Wonderful. Look how we've agreed. Yeah. So again, it's it's may seem like a contrivance, but it works. It actually starts to get people thinking, as you would say, in this particular context outside of the box. Well, another thing I call it is, there are no sacred cows anymore. You know, people have their sacred cow that they're not willing to sacrifice. Maybe it's the house, maybe it's the retirement, maybe it's something else. Maybe it's 5050 custody. I hear that one a lot now. Yeah. People, that's the family code talking to Well, it's not even it's actually a misunderstanding of the family code. And they say 5050. You know, it's, it's, it's right. It's it. But I mean, people will glom on to things that they hear that they read on the internet, or they talk to a friend about and they think they have to have this. And when you get right down to it, maybe it's not right for this family to have a quote unquote, 5050 time arrangement. And with that particular thing, Shawn, there may be an ulterior motive that's money related, because family code that can happen because they're thinking they're going to get more support, or, or pay less support Exactly. The other concept is, sometimes I will make assumptions about what people think they understand that is a mistake. So a person will come and so I want a 5050 timeshare, and then I'll ask this person, well, what does that mean to you? 5050. And they'll tell me Well, it just means I'm just as important as the other person and if I had every other weekend and maybe dinner in the middle of the week, as long as I could go to all the ballgames I consider that 5050 And then I'm like, oh, okay, so if that's what you mean by 5050, I go to the other person. Well, would that be okay with you? Well, sure, yeah. So So I mean, sometimes we make assumptions about what people mean, or what we think they mean that are actually wrong. And so it's really important for a good practitioner and the client when they're in the process to just make sure now, is this what you mean by 5050? What do you mean by that? Or what do you mean by stay in the house? What does that look like to you? What does that feel to you? Can you describe that so that we, you know, asking lots of open ended questions, not just yes or no. So that we can get really down, get down to the bottom of it. I use a lot of curiosity as a mediator, kind of like Colombo, you know that just one more thing? Remember Columbo? Okay, just one more thing? Yeah. Did they lead you a pencil to? Yes, yes, I require and especially when run zoom after somehow pass it through the email? Yeah. Yeah, just one more thing, I'll kind of act stupid, I'll kind of scratch my head, I don't understand this, can you explain this to me, like, I'm like, I'm a grade school kid. And then you can get to the bottom of what's really going on in their world. And when you get into the world that they're experiencing, then you can find ways that maybe there's a settlement that's outside the box that no one ever thought of, or that they didn't even know that was a possibility. And that's what we bring to the table is some experience of seeing creative solutions, that they're not going to have read on the internet, they're probably not going to even gotten it from having talked to an attorney. And they certainly want to have gotten it from talking to their friends and their circle of Greek chorus advisors. Yes. Greek chorus, have a great course. I'm listening to you guys. For this moment. I'm thinking to myself, how very unlike a litigated process, this kind of thinking really, really is. It's like, it's so I mean, from my world, it's so therapeutic. Yeah, it's, it's so deep attempt to really help these people find a way that is not so laden with, you know, who's beating who over the head with what and, you know, it becomes about honoring what was good about your relationship, moving forward, being respectful in a mutual way. So that both of you can walk away with some level of dignity and respect. Yes, you can't get that in litigation is easily. No, you got to get really lucky. Most of the time, it's it's cut the origin half next. Yeah. I mean, I've heard you talk mark, about a time when you had to go to court and a personal matter. You talked about it on this podcast, and you said you felt violated? Yes. Because of how quickly they just kind of shoved you through and the judge made assumption, my divorce from hell. It was the one day trial. It was where I was told to pay half of my wife's credit card bills on the house we owned that we had had to do some work on to put it on the market. And so I was ordered to pay half of her bills. And the judge completely missed the three times the amount that I was on my credit card. And my attorney goes, Your Honor. What about Mr. hills credit card bills? I didn't see anything. Your Honor. I prepared a very detailed brief. I didn't say anything next. And I'm I feel incensed. I want to be Perry Mason. I'm trying to stand up an object. The lawyers pushing me back in my seat. No, truly, that's exactly how it was. Yeah, yeah. Yeah, yeah. I mean, I've been that lawyer before. And then what you do is you go into the you go into the other room when the case is over. And everybody's kind of shell shocked because it happened so quickly, and people are not necessarily sure what went down. Yeah. And you're like, you know, we won some we lost some Well, I want to appeal this issue where you can appeal that it'll cost you more than the issue. Yep. You know, you'll spend $20,000 to get $4,000 it's not worth it. Yeah. And and that's unfortunately how frustrating it is. So it's so averse to the way we perceive of our legal system is alpa Chino and justice for all except it's not it's it's a it's a treadmill, and well, it's you're on it. It's the fault of the profession. You know, we put this Lady Justice figure in front of the courthouse and it's on the seal of the court. It's that woman with the blindfold and the scales of justice. And I'm here to tell everyone that woman as beautiful as an idea she is is mythology. There is no such thing as fair at the courthouse. There's no such thing as just as really. If you're going there for justice, you're going to be Disappointed, especially when you're talking about family law, because judges don't know what to do with you. And so they're just they got both of you coming in there, they got 20 minutes, maybe an hour to figure something out. And it may be very complex, it may have taken the best year of your life to prepare for court. And then you get there and the judge literally has 10 minutes to make the decision. Or even worse, you have a one week trial scheduled, and the judge hates you and everybody associated with the case before because you have screwed up their calendar for months to come. There must be something wrong with you. Exactly. Here's the kind of judges gonna look for someone to blame. Yep. And the other thing that you have, and I don't mean to, I think judges do herculean work. This is not meant to be a criticism. But my gosh, how could they possibly with the amount of cases they have coming at them? Do anything, but just kind of shuffle people through? And they love it, by the way when people settle in mediation? Because then they don't have to deal with you. Yeah. And but and by the way, we we have this is just the the backdrop to what life has been like, add in COVID. And the delay, yes. And the inconsistency is in the court process that exists today, it's 10 times worse than it was a couple of years ago. It is I'm hearing I'm hearing reports from colleagues that are going to court I don't go to court anymore. But what I'm hearing is that they they because everything's online, they don't really get to know the judge. The judges are kind of grouchy. We have some gastronomical jurisprudence going on. Which means, you know, depends on what the judge had for breakfast that morning as to what the decision is. And, you know, and and I always tell people stay in charge, do mediation, do out of court settlement, figure out a way to get done. Mark, we have a colleague that said you'd have to be crazy to get divorced in this COVID environment. He did say that. And and I think that's very true. And but sometimes he will have to get divorced. And sometimes you're crazy not to get divorced. And no matter what the circumstances. Yeah, yeah. And so then you have power over what that process is going to look like. So do you want to be one of the people that are subjected to a cookie cutter that doesn't quite fit you right? Or do you want to think outside the box? Do you want to find a way to move forward, even if it means killing a sacred cow. And leaving something on the table and giving up on the concept of fair so you can have a good business decision. And also maintain some control over process in terms of timing. And the truth is that divorce is by nature disruptive to normal life. However, you can limit that disruption, if you can have some control of the process. Once you abrogate the responsibility of making a decision to a judge, your timeline gets distorted as well as the outcome. Well said, the box well said it's not an it's not uncomfortable outside the box. Sometimes. People sometimes feel like they're out on a limb. Would you agree that Scott, I see kind of nodding, I'm thinking about whether, you know, it's like, we carry the box. Each of us carries the box, it's and we opt for choices that are within our framework of expectation. And I think a lot of people go into a divorce, just expecting Well, okay, it's war time. You know, it's war time. And you know, we're going to go to court, she's going to kick my ass, or I'm going to kick hers. And so it goes. And by the way, our relationship has come to that it almost makes sense. You know that that's what's going to happen. And the idea that this could be it sounds like the old phrase gilding the lily, you know, making something a whole lot sweeter and lovelier than it really is. It almost sounds too good to be true. To say this could be a turning point for you people. This doesn't necessarily have to be the disaster that it is painted to be in you know, and you know, whatever hellish crap is going on is already going on. So, if we can find a way to make things not only not worse for you, yes, you're going to have to divide your holdings in half. Okay. But what What if What if there was a good way to live forward out of this? What if I mean, and I think I think locating yourself in the box of it's gonna be a war, okay, you know, we'll take turns guns or knives, you know, but that's the hope of the collaborative movement, frankly, your hope is that you can make this transition, something that you can grow from. And I candidly, I've seen it on the financial side, when you have the unmanaged spouse, not always, but often the wife hasn't been involved in the money during the marriage. And then throughout the divorce, she gets an education, she works at it, she's a smart lady, she can understand this stuff. And her power grows throughout the process. So there can be some things that can be achieved, you know, and but sometimes it's just triage, we're just getting the deal done, I get it, and it's just getting him through. But our hope is, when we start this is that we can engender some kind of transition. And I have had this rare, but I've had cases where people have said things like, boy, if we'd have had some of these tools and skills before, we might never have gotten divorced. I've literally had people say that. Well, and let me add out this caution. You don't have to like each other. to negotiate a win win agreement, that's correct. You could be completely self interested. And not wishing the other person any well at all, and still negotiate an agreement that's best better for both of you, because it's good for you to do so. You know, your self interest can motivate you to find a better solution. So you get more of what you want. And so if you're the lady fighting over the orange, you're going to get the zest, that's what you want it. You know, I think a lot of times a litigated situation, results in people never ever letting the other person know what it is they really do and don't want, right, that guy's game is so stacked to try to take it all. That's it, I give up. Some This is I'm showing my cards if I tell them what I really want. Right, right, like, can't do that. Yeah. But it should be counterintuitive, shouldn't it. But that's the difference between interest based negotiation. And these other sources of negotiation where you're fighting, you know, battle, you know, a warfare style negotiation always looks at the past, you're applying some rule to some past event. Whereas when you're looking at interest based negotiation, you're looking to the future. And it's much more powerful, and it's better for both of you. Yep, you get more of what you want. Positions versus interests. Big, big deal. So I think that's really interesting that we started this conversation, just kind of talking about creative outside the box thinking and where we landed was interest based negotiation and getting more what you want. Because that's really what we do. Hmm. Yeah, but but also just a bunch of boring old guys who just always, always landed the same place. I hope not. I think, though, that part of the work that certainly I do, is helping people understand what they want, not what I think they should want, but but giving them enough information, as I was saying earlier, so that they can think rationally about, you know, do I really want the huge house at age 62? Just because all my girlfriend's got their big houses when they got divorced. I mean, again, that's, uh, but I, you know, or going back to your custody thing. I don't want to be seen as a bad dad. So I must have 50% custody. So that means things with other other things that may not necessarily be in their best interests. And in so doing, you become a not so good dad. Right? Because you're not coming up with a plan that's really best for the children. You're coming up with a plan that checks a box, right? I'm not saying dads shouldn't be 5050. But right. But when we actually discuss these things, there can be some flexibility in terms of time spent in terms of financial arrangements attached to times spent. There's there's flex that can happen when you negotiate. Yeah, as opposed to the prenup. That's the family law code. You know, yes. Gentlemen, we are definitely outside the box. Well, and that I think that's a good thing. Yes. I think there's some people would say, Oh, you know, those guys? They're a little outside the box. I don't know about that. Yeah. Yeah. And there are if they were talking about us that there might be, I don't know. But I wear that badge proudly. Yeah, I do, too. We will dance on each case to a different drummer. I always say, I've never found a cookie cutter yet that fits everybody the same way. Yeah, sure that people want the litigated approach. There are many, many fine attorneys in this town who will take them down that road happily. here and you can pay for that too. emotionally and financially delighted to take your money. Have we done it again, gentlemen? I think we have Oh, my goodness. how much fun we had, huh? It is fun. Yeah. I rather like you guys. I like you too, boy. Well, alright, then fun. It took this long to convince you that we're okay. Well, you know, I didn't say you were okay. He has he has thought outside the box. That it's in his best interest to coexist with us even even to like us it will appear fairly. Well, Scott? Yes, sir. If people are emotionally stuck and need to think outside the box, what should they do? Well, I mean, they could contact me if they would wish to do so. I'm Scott Weiner. W e i n e r, and I answer my own phone at 619-417-5743. Now how about you too moderns? How would they contact you? I have this loud. Go ahead. Go ahead. Mark. I have this thing called a website. And if you've heard of that, what is that? Yeah, it's so the company is Pacific divorce management. The website is packed divorce Pac di bo rc.com. Easy to contact through the website. You know, I not only have a website, but I'm also on Facebook and Twitter. Now, well, you're off that generation, aren't you? We are those young kids these days Really? Well. I'm Gen X. I'm considered old by the Gen Z children. Well, come on, you know I don't do Tick Tock and I don't even know what the heck they've gotten out. But you can reach me at Weber dispute resolution.com that's Weber with one B dispute resolution.com or you can follow me on twitter at Weber Family Law. Thanks for listening to another episode of the three Wiseman of divorce, money, psych and law. If you liked what you heard, be sure to subscribe. leave us a review and share with others who may be in a similar place. Until next time, stay safe, healthy and focused on a positive bright future. This podcast is for informational purposes only. Every family law case is unique. So no legal, financial or mental health advice is intended during this podcast. If you need help with your specific situation, feel free to schedule a time to speak with one of us for a personal consultation.