Dear Nick and Nora,
Although your court case is only six weeks old and you have been separated for only three months, you are in the thick of both your legal and psychological divorce. I’m going to describe what’s going on in each.
When I last wrote, Nick had just received a comprehensive set of “demands for the production of documents.” These included “all of the research material relied upon when making the decision to buy and then to sell” the stock purchased by Nick (on behalf of the community) and then sold at a loss. It also included all documents relating to Nick’s “investment” in our local version of Bernie Madoff’s Ponzi scheme. According to law, Nick had 30 days to produce the documents or to object to their production for some legally sufficient reason. For a document demand of this complexity, the lawyer making the demand will almost always agree to a 30- or 60-day deadline extension.
Nora’s lawyer, however, didn’t agree to an extension. Instead, Nick’s lawyer received a letter five days before the deadline that said, in part, “Because of your client’s history and because of what little we know of his management of the community estate, I would be remiss in the execution of my duties if I agreed to anything that would delay the investigation of various breaches of his fiduciary obligations. Accordingly, you should not anticipate an extension of the deadline for the production of all documents.”
I don’t know why lawyers talk like that. In other words, he says, “Don’t ask for an extension of the deadline because you won’t get it.”
Nick, his attorney and two legal assistants do what they can to find the documents requested. Where the records haven’t been preserved but might be available from a third party, they explain that a request for the document has been made to so-in-so, and they attach a copy of the letter. For the remaining missing documents, Nick’s lawyer prepares written objections, which are then delivered to Nora’s lawyer along with the material that is being produced.
Nick’s influence is apparent in objections to the delivery of research material used in the stock trades that resulted in losses and material related to the Ponzi scheme. He says, “The documents related to what were admittedly losing transactions are not discoverable. As manager of the community estate, I increased the value of our property by more than 100 times during the course of the marriage. During the course of the ever-increasing value of our estate, I made investments that resulted in losses. That is in the nature of a capitalistic society. You win some and you lose some. I did both and I came out on top. Given this result, Respondent (Nora) has no right to focus an investigation on transactions with an unfavorable conclusion.”
It looks like Nora’s lawyer was able to cause Nick’s lawyer some trouble with the document demand, and it also allowed for the use of legal assistants. As a rule of thumb, a law firm keeps as profit one-third of a legal assistant’s billings. The same is true for the billings of an associate attorney. The more legal assistant time that goes into a (family law) case, the greater the profit.
Thus, Nora’s lawyer has done Nick’s lawyer a good turn. It will, no doubt, be reciprocated. Think about it.
. . .
You have both seen the so-called “Stage Model of Grief.” It is usually shown as a five-part sequence: 1) shock and denial, 2) anger and rage, 3) false bargaining, 4) depression, and 5) acceptance. Typically, the writer will say something like, “Of course the stages don’t appear once and then disappear. There is a lot of jumping around and a lot of repetition.”
This stage model of grief was first proposed in the 1969 book On Death and Dying by psychiatrist Elisabeth Kübler-Ross. The theory behind the model was quickly put into use for hospice care by the American Cancer Society, and it continues to be taught in medical schools.
Despite its widespread use, the Kübler-Ross model was not empirically tested until 37 years after its initial publication. The “Yale Bereavement Study” in the Feb. 21, 2007, issue of the Journal of the American Medical Association was an account of an empirical investigation of New Haven residents who were suffering from the loss of a spouse. Made up of Harvard and Yale psychologists and psychiatrists, The Yale Bereavement Group designed the study so the general nature and intensity of the individual’s suffering could be (literally) graphed over time. The results were surprisingly unequivocal. The five emotional states appeared in exactly the order predicted by the model, and the intensity of each peaked in the order predicted by the model.
When a person experienced anger and rage in its full intensity, the effect of Stage One (shock and denial) remained evident but with decreasing intensity. The effects of Stage Three (false bargaining) and Stage four (depression) were starting to build. This means that what appeared to be confusion with various stages appearing and reappearing can be accounted for by a sequential increase and decrease of each emotional stage. Instead of being an end-point destination, as it had been in previous models, Stage 5 (acceptance) is shown as a state that starts low and continues to build in a positive direction during the course of the process. This means that you are continually getting better even when you are feeling worse.
Here’s what I think is happening to you right now. Even though it was he who initiated the divorce, Nick’s resistance to what will be a final accounting is a manifestation of shock and denial. If he gave it any thought, it would have been obvious to him that the allocation of the Ponzi losses would have to be discussed, and anyone who knows Nora knows that she’s not going to let Nick dictate to her the terms of “his” divorce.
Nora’s anger and rage are expressed every time her lawyer talks about Nick’s “breach of his fiduciary duty.” If nothing else, Nick sees himself as a Great Provider, and he has been. To challenge him on that ground is a threat to his identity. For a while, Nora can pretend the assault on Nick’s character is coming from her attorney, but that won’t work for long. Nora is too strong and too smart to let a lawyer do things of which she disapproves. So whatever her lawyer does will be done with her approval, whether implicit or explicit.
Nick’s anger and rage are apparent from his over-response to the “Demand for Production of Documents.”
The False Bargaining Stage can be divided into two “phases” during a divorce. In Phase One, the couple must complete three tasks: a) create a new way to communicate; b) create a new way to do business, and c) become increasingly realistic about the terms of the final settlement. With the passage of time Nick will become increasingly “tolerant” of Nora’s voice in matters concerning the management of their property, and he will become increasingly disabused of the notion that he’ll be able to dictate the terms of the settlement.
I don’t see relief in the near future, but here’s a thought that’s worthy of reflection. Some of the emotions you are experiencing are worse than anything experienced before. They feel as though they will persist indefinitely unless you do something! Regardless of how they feel, it is a fact that they are transient — and will pass — even if you do nothing.
Your best friend,
Bucky
— Brian H. Burke is a certified family law specialist practicing family law and mediation in Santa Barbara. A researcher and educator in the field of divorce and family conflicts, he is also the creator of the Legal Road Map™. Click here for more information, call 805.965.2888 or e-mail .(JavaScript must be enabled to view this email address).
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