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Thursday, December 13 , 2018, 3:45 am | Fair 46º


Brian Burke: About Your Divorce (Letter 34)

The Principle of the Orange Sofa can be applied to other situations

Dear Pinky and Spike:

This letter is about The Case of the Orange Sofa, and it includes an example of The Stall — or the second phase of quasi-bargaining that usually starts after the first year of separation.

Rob and Laura had been married for six years and had a 3-year-old daughter. Laura was a lab technician, and Rob worked in the claims department of a health insurance company.

I represented Rob, and a lawyer I’ll call Edgar represented Laura. Edgar was a brash, corpulent, funny guy. This story took place more than 30 years ago, at a time when Santa Barbara lawyers trusted each other and the work we did on a divorce was limited to what was necessary.

Edgar told me that Rob was a relentless bully determined to take everything of value accumulated during the marriage. He had supposedly told his wife that she wanted the divorce and she could have it — and he was going to take everything else. Laura called Edgar at least once a day as her fear of my client increased. Edgar also had a growing concern for her safety. He beseeched me to agree to a meeting with our clients on the Wednesday night before Thanksgiving. Even though I thought the meeting was premature, I yielded to Edgar’s insistence.

Once the meeting began, Edgar had to infuse his energy into the settlement discussion if it was going to go anywhere. It was also apparent that he had convinced Laura to delegate the decision-making — and the talking — to him.

We had a list that started with a dozen unusual kinds of property, all with a relatively low value, and each one had to be valued and distributed to one party. Rob had invested relatively small amounts of money in assets that were goofy. He didn’t understand the commodities market any better than Edgar or me (which meant he didn’t understand it at all), but he had some commodity futures, including pork bellies.

No matter what the asset, Rob insisted it had “great potential” if it went to Laura; however, when Edgar suggested that something be distributed to Rob, Rob said it was “completely worthless.” Rob was oblivious to the contradiction. I told him that it was impossible to have a rational conversation if he took two opposing positions on every issue. He told me that he could think and talk for himself, and since he was paying for my services, he’d let me know when he wanted them.

I stopped talking.

Rob was an intelligent guy, but he didn’t seem to realize that his contentions were absurd. Maybe it was because they worked. Edgar would argue forcefully against each one, but Rob would say the same thing again and again. Then Edgar would yield and settle for less because it was necessary to cut his client free from her husband.

Laura seemed to retreat more and more into herself. Two or three times she said she didn’t understand anything about Rob’s investments and didn’t want to know anything about them; that was why Edgar was acting on her behalf.

During most of this miserable meeting, Laura and Edgar were equally determined to cut her economic ties with Rob. But I got the impression that from time to time her determination wavered and Edgar would have to prop it up.

. . .

When we got to the Orange Sofa, Laura finally spoke for herself. In most cases the stuff is divided “organically” — the parties each get what they value or need most, and they are indifferent to the equality of the division. If valuation is required, the standard used is the price each item would fetch at a garage sale.

Edgar gave the Orange Sofa an arbitrary value of $300. It was late, but Laura was determined to explain in excruciating detail how she and Rob “designed” the sofa and had it built to their exact specifications. Its original cost was $2,500 plus a delivery charge and tax. Rob interrupted and told Laura to “drop the narrative,” but she persisted.

I broke my silence to interrupt Laura to say that if she wanted the Orange Sofa, the lower the value, the better it was for her. Her facial expression said she thought I was trying to steal from her. Rob said that a value of $300 was fine, but Laura wouldn’t hear of it. I felt trapped in a crazy dream.

Edgar and Laura spoke privately for a half-hour. When they returned, Edgar said the Orange Sofa was worth $300. Laura looked defeated and resigned. Somehow we finished the list. Edgar drafted a Marital Settlement Agreement on Thanksgiving so it would be ready Friday morning. Laura refused to sign it.

Edgar was able to get her to sign the documents necessary to procure a “Status Only Judgment.” Rob signed them, too. The marriage was “dissolved,” they were both single again and the court “retained jurisdiction” to divide property if they couldn’t do it themselves.

I didn’t hear from Rob again, and he didn’t pay his bill. I don’t know if the property was ever divided. A year later I read a newspaper account of Rob’s arrest, trial and conviction in another state for conspiring to assassinate a police officer.

Edgar and I have talked a lot about this case. In retrospect, we think we know why it turned out as it did:

» Edgar’s attempt to use his energy to sever his client’s connection with her husband was doomed from the outset.

» Laura fixated on the Orange Sofa because she and Rob had designed it together. If not the Orange Sofa, it would have been something else.

» Laura realized that the value of the other assets was unknown to her, and she didn’t want to make an effort to understand how their value could become known.

» She was comfortable with the delegation of power to Edgar until the process hit The Stall in the form of the Orange Sofa.

» She thought the value of the Orange Sofa was known to her even though it was wrong in terms of her own economic interest and wrong given the method used to determine the value of stuff in the context of divorce.

» She thought that so much about the value of the Orange Sofa was known to her that she couldn’t hear me or Edgar when we tried to explain why she was wrong. From her perspective, she thought everything about the sofa was known to her and unknown to us. We had never seen the thing, and the fact that Rob agreed with us was proof that we were wrong.

» Since she thought Edgar was wrong about something she understood, she could no longer trust his judgment on things she didn’t understand.

The Principle of the Orange Sofa is not limited to divorce. It’s a method for making a decision about something that’s unknown on the basis of something that’s known.

Imagine that you’ve ordered 1,000 identical assembled objects and agreed to pay for them on delivery. When they arrive, each one is elaborately wrapped. Before paying, you unwrap 10 and each is defective in the same way. You refuse to accept the order because you know 10 of 1,000 objects are defective. On the basis of the known, you conclude that the unknown condition of the other 990 objects is likely to be defective. It’s a decision-making process that uses extrapolation.

When we meet a person who expresses an opinion we know to be wrong, we are unlikely to accept his opinion about something that’s otherwise unknown to us. This is what Laura did with the Orange Sofa, but her conclusion was wrong because she didn’t know what she thought she knew — and no one had the creditability to show her why she was wrong.

. . .

The Stall resolves itself as each spouse goes into his or her Stage Four Depression, which will be the topic of the next letter. During this period there is a temporary loss of “hope” and a struggle with the existential issue of “aloneness.” It is also the time of the “cocoon” during which a transformation of self takes place — for better or for worse.


— 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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