August 2012 Archives

California Divorce Attorney Undermines Couple's Efforts to Reach Agreement - Just Say No To Litigation

August 17, 2012, by

Sometimes, quite often in fact, the flames of conflict in divorce cases are fanned by attorneys who have more to gain from conflict than from resolution. Against my better judgment, I recently accepted a litigation case with the hope that perhaps I could help facilitate a negotiated settlement. It appeared to be a matter that could be settled with relative ease. During the negotiation process between the attorneys, the clients had a long talk, longer than they had had in years from what I was told, and agreed to put the matter on hold for some time to see if they might reconcile and resolve some of the disputed issues between them.

Upon hearing this, I was tentatively hopeful for both and provided my client with resources he might consider to help improve their communication and relationship and suggested that marital counseling may also be very helpful. And of course, a flower or two wouldn't hurt.
When my client's spouse told her attorney of their plans, her attorney responded with the statement, "Oh, so he wins," and grudgingly prepared a stipulation to continue the scheduled hearing out for a mere three months. I was horrified but not really surprised.
This is a marriage of nearly 40 years, a couple of retirement age with adult children and grandchildren and very moderate assets. Divorce in a situation like this should be a last resort only after some attempt at counseling as it is certain to result in considerable hardship for both. And after nearly 40 years, there is so much to savor and cherish if reconciliation succeeds.

I sent an inspirational photo and waited, hoping that the gods and goddesses of peace and love would prevail. Alas, it was to no avail. Reconciliation and healing of the relationship proved futile but the parties at least tried to reach a settlement of the issues between them and rather than supporting them in their efforts, the other attorney dismissed and undermined their efforts, and most shocking of all, the wife told her husband she was afraid to discuss their proposals with her attorney because her attorney would yell at her.

I have no idea why anyone would hire and pay fees to an attorney who would yell at them. And I later heard that the attorney put a lien on their house to collect her fees.

Lesson for me: Never underestimate people's proclivity for conflict and the tendency of attorney's to exacerbate the conflict to line their own pockets. Just say no to litigation.

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Gray Divorce in California

August 17, 2012, by

Marian, 57, and her husband for nearly 30 years, John, had buried their differences over money, child-rearing and more. But when the last of their two children was finishing high school, the differences became too glaring to ignore. Increasingly, they had little to talk about, and when they did, it was an argument.

They stayed together all those years because of the kids, but now there was little left to hold them together. Marian realized that she was alone in the marriage and would be better off either really alone or with someone who shared her values and interests. When the pain of staying was greater than the fear of leaving, she made a decision and told John the marriage was over.

For this generation of empty-nesters, divorce is increasingly common. Among people ages 50 and older, the divorce rate has doubled over the past two decades, according to research by sociologists Susan Brown and I-Fen Lin of Bowling Green State University, in their paper, "The Gray Divorce Revolution".
Though overall national divorce rates have declined since spiking in the 1980s, "gray divorce" has risen to its highest level ever, according to Prof. Brown. In 1990, only one in 10 people who got divorced was 50 or older; by 2009, the number was roughly one in four. More than 600,000 people ages 50 and older got divorced in 2009.

Moreover, a 2004 survey by the AARP found that women are initiating most of these divorces. Among divorces by people ages 40-69, it was women who sought the divorce 66% of the time. Infidelity is not a primary factor in gray divorces. The same AARP survey found that only 27% cited infidelity as one of their top three reasons for seeking a divorce. This is consistent with estimates of infidelity as a factor in divorce in the general population.
In 1990, 1 in 10 of all divorces were by people ages 50+. In 2009, 1 in 4 of all divorces were by people ages 50+.

As always, there is probably no easy explanation for the trend but it probably derives at least in part from the boomers' status as the first generation to enter into marriage with goals largely involving self-fulfillment. With 'empty nests' on the horizon and many more years of a healthy and productive life, they are increasingly deciding that they have fulfilled their parental duties and now want out of the marriage.

Boomers married with expectations quite different from those of prior generations. "In the 1970s, there was, for the first time, a focus on marriage needing to make individuals happy, rather than on how well each individual fulfilled their marital roles," says Prof. Brown, author of the gray marriage paper.

According to Professor Brown, over the past century there have been three "phases" of American views of marriage. First, there was the "institutional" phase, in the decades before World War II, when marriage was seen largely as an economic union.
This was followed in the 1950s and '60s by the "companionate" phase, where a successful marriage was defined by the degree to which each spouse fulfilled his or her role. Husbands were measured by their capability as providers and wives by their skills in homemaking and motherhood.

The "individualized" phase, began by boomers in the 1970's according to Professor Brown, with an emphasis on the satisfaction of personal needs. "Individualized marriage is more egocentric... before the 1970s, no one would have thought to separate out the self as being distinct from the roles of good wife and mother."

Many of those opting for gray divorce, face complications in our current bleak economic landscape. Although such divorces generally don't involve co-parenting and child support issues, only issues of property division and spousal support, and are therefore simpler in principle, there are still difficult decisions and choices to be made. And as always, these decisions and choices are best made by the couple themselves in a Collaborative or mediated divorce, with the assistance of professionals trained to help the couple work together to make the choices that will benefit both.

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