Monday, March 19 , 2018, 11:43 am | Fair 59º


Brian Burke: About Your Divorce (Letter 10)

Lawyers engage in 'ritual bloodletting' as each side maneuvers to gain the upper hand

Dear Nora and Nick,

Aren’t you the lucky ones?

Your lawyers — and all the people they have standing by to “support” them — are busy “refilling the old coffers.”

I think you are witnessing a game the lawyers are playing with each other called “ritual bloodletting.” The idea is to be the first side to get into a courtroom to ask the judge to issue an order, any order, against the other side. The lawyer wants to demonstrate to the other side that he or she has the means to mobilize the power of the state to act upon his or her client’s soon-to-be ex-spouse. It doesn’t matter if the action requested from the court is trivial, as long as he or she prevails and as long as the court grants at least some of the “relief” requested.

Nora’s lawyer left the starting blocks first with a conventional “motion to compel production of documents.” The timing suggests a well-trained staff because they didn’t give Nick or his lawyer time to catch their breath after finishing their attempt to comply with the demand to produce documents.

The sequence went like this: (1) Nick and his attorney received the overwhelming “demand” to produce many documents within 30 days. Two categories are disconcerting to Nick. These include documents relating to the research he did on losing stock trades and documents relating to the Ponzi scheme he got caught up in. (2) Nick first whines to and then argues with his lawyer in a futile attempt to be excused from revisiting any of these past events. (3) In a typical second phase of the attempt to avoid dealing with these unpleasant subjects, Nick insists that his lawyer make a demand that Nora produce documents, “so she can see what it feels like.” When his lawyer asks, “What documents do you want from her?” Nick says, “You’re the lawyer, you’re the one who should be able to figure that out.”

To her credit, Nick’s attorney declined to comply with the silly request and came up with a move that is clever though risky. Before describing what she did, I’ll finish my account of the way Nora’s lawyer squeezed all he could out of the demand for document production.

He knows that Nick will try to avoid dealing with the documents, that Nick will then want to make Nora do the same, and that Nick will ultimately get around to the considerable task of looking for, collecting and organizing documents when there is less than a week left before the deadline. Just as Nick gets to work looking for the documents, Nora’s lawyer sends a letter to Nick’s lawyer stating there is no point in requesting an extension of the deadline. Even though a judge is likely to grant a request for additional time to comply with a demand for so many documents, the letter gives Nora’s lawyer an opportunity to imply that Nick is an idiot. He does this when he gives his reason for not being willing to allow more time for the gathering of the various business records he has requested.

The exact words are, “Because your client has managed the community estate for at least 25 years, and because we already have clear and convincing evidence of reckless behavior resulting in losses of more that $1 million, we cannot afford to provide your client with the luxury of more time than the statute allows to turn all the records my team needs to reconstruct what he has done to the estate in the past and to determine if he continues on his reckless course of conduct at present.”

That 84-word sentence describes Nick’s past behavior as “reckless” and wonders aloud if he is presently doing something that is depleting the marital estate. Nowhere is there mention of the fact that, while he has lost money during the marriage, he and Nora started with nothing and Nick, on his own, has managed to create a substantial “marital estate.” It is so “substantial” that if they continued the style of living they have enjoyed for the last several years, they could not spend what they have if they both lived to age 200. In a word, Nick has made them both rich.

By the close of business on the first day after Nick’s inadequate attempt to comply with the document demand, a notice of motion (request) to the court for an “order to compel” is hand-delivered to his lawyer’s office and the earliest possible date has been scheduled for a court hearing. At the hearing, Nora’s lawyer will ask the judge to “compel the production of documents,” which means the judge will tell Nick, “You really must find this stuff and turn it over to your wife’s lawyer.” Nora’s lawyer also asks that Nick be ordered to pay all the attorneys’ fees generated by the “need” to file the motion. To get another dig at Nick, he asks the court to “specifically restrain the Petitioner (Nick) from removing, destroying or secreting any and all of the documents heretofore demanded but not produced in compliance with the applicable statutes.” The plea to the court concludes with the story of how Nick bought the new red Porsche as an example of his reckless attitude toward money. The account doesn’t describe how Nora gave the car back to the dealer.

It’s still early in the game, but Nick is starting to lose confidence in his own lawyer, who hasn’t been able to “protect” him from Nora’s “tire-biter,” and who hasn’t done anything to Nora since her public humiliation.

However, Nick has underestimated his champion’s resourcefulness. As soon as she gets the “motion to compel,” she mobilizes her resources to prepare a motion of her own. The timing is such that she is able to get the hearing on her motion scheduled for the same time as the hearing on Nora’s motion.

Nick has control of the money and the property. He always has, and Nora has never asked that it be any other way. Nora, for the past several years, has been able to withdraw from community accounts as much money as she wants or needs. Nick has a bookkeeper who pays all personal bills and who has standing instructions to transfer cash to Nora’s checking account whenever Nora makes the request. Nora can manage the transfers herself, but she prefers to have the bookkeeper do it. Nora knows Nick’s stockbroker, his investment advisers, his bankers, his accountant, his real estate agents and his business lawyers. He has frequently invited her to meet with them, and she knows they have standing instructions to speak freely with her and to give her whatever information she asks for. She can follow most account activity online.

This is one divorce where neither party is suffering from a lack of spending money. Nora does not need to ask the court to make Nick provide her with living expenses, because she has whatever she needs. It might appear that Nick would have no interest in getting a court order to supply Nora with “temporary spousal support,” but his attorney cleverly turns the table on Nora by making a request that the court “establish the amount of temporary spousal support, if any, to be paid to Nora while the case is pending.”

The devil is in the two words “if any.” Nick’s lawyer has a one-page Summary prepared by the couple’s longtime accountant who knows more about their finances than they do. The Summary shows that if average annual investment income is divided by two, Nick and Nora each have passive income that is four times as much as the earned income of any judge who will hear their case. Nick’s lawyer is asking the court to make a preliminary finding that, with her half of the community property income, Nora is financially independent and has no need for additional support from Nick.

In other words, Nick’s lawyer is making a preemptive strike on the issue of spousal support. To deny the motion the judge will have to find that Nora’s reasonable living expenses exceed her half of the income, and Nora will have to stretch to argue that she “needs” that much money. If she attempts to justify extremely high living expenses, she risks losing credibility with the court.

To counter Nora’s request for attorneys’ fees, Nick’s lawyer proposes an arrangement in which the bookkeeper keeps a joint account balance of $100,000 and either party may draw on that amount in order to pay his or her lawyer. She suggests that, instead of ordering either party to pay the other’s fees, the court “retain jurisdiction” to decide the issue at the conclusion of the case (in the event Nick and Nora are unable to settle on their own). To co-opt the nasty request for an order telling Nick not to destroy or secrete documents, his lawyer “stipulates” to the restraint, saying, in effect, “Judge, it’s a waste of words. My client would never destroy or conceal evidence. But if Nora wants you to tell him not to do what he would never do, we won’t argue. We agree that you can say the magic words and then we can get down to business.”

It’s been expensive week to maneuver into your tactical positions, and I’m looking forward to learning about what happens at your hearing. In the meantime, you would both benefit from thinking about what, if anything, is really at stake.

Your best friend,


— 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 Roadmap™. 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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