Sunday, July 22 , 2018, 5:39 am | Fair 66º


Brian Burke: About Your Divorce (Letter 20)

An exercise in understanding the notion of fairness

Dear Nick and Nora:

My mind is back at LAX, and I’m thinking about the argument I heard between Ralph, Rita, Frank and Francine. The couples were concluding a bad trip, and Frank had served as The Pot. But instead of dividing their unspent money equally, he wanted to take a 25 percent commission “off the top.” He gave seven reasons why he should get a fee for the work he had done, and I asked you to anticipate how Ralph and Rita would respond to his arguments.

You each got about half the answers correct, and you each asked me the same question: “What’s this got to do with us?” Two years from now you’ll think the parallels are obvious, but it would be valuable if you could see them now.

A list of Frank’s arguments and Ralph and Rita’s replies may help reveal the connection.

1) Frank: I’ve done it six times. The job has been thrust upon me. I never volunteered. Reply: You’ve done it five times without complaint and without compensation. When you did it this sixth time, there was clear communication by your action that the deal would be the same as it was the previous times — no compensation.

2) Frank: Keeping track of the money detracted from my enjoyment. Reply: On this trip there was precious little to enjoy, and you’ve acknowledged that it would be even worse for you if one of us (or all of us) were to keep the money.

3) Frank: None of you could do the job because you can’t add and subtract. Reply: OK, Frank, we can’t add and subtract when we are on a trip with you, but we could figure it out if we really had to. Arithmetic isn’t something only a few can do. Frankly, Frank, when it comes to this, you are replaceable.

4) Frank: I’m tired of being the Designated Responsible Person. Reply: Fine. If you decided you didn’t want to be the Responsible Person, the rest of us — individually or collectively — would become more responsible. Maybe we’ve been wrong, but we thought you liked being in charge and having the power that goes with it. Not to be cruel, but in your workday you are given more orders than you give. That’s what you’ve been telling us for the past 25 years.

5) Frank: I’m the only one who works for a living so the money means something different and something more to me than it does to you. Reply: You lose us on this one, Frank. Are you saying the marginal utility of the fee you want to rip off is higher to you than it is to us? The marginal utility of every cent we have — and, actually, every cent you have — is higher to nearly the entire world population. If you want to redistribute wealth, charity begins at home — your home, not ours — and excuse us if we opt out of your giveaway program.

6) Frank: You can’t understand what the money would mean to me because you aren’t in my position. Reply: We can put ourselves in your position before and after you’ve made this demand. We can imagine wanting some sort of compensation for being The Pot. While we might want it, neither of us can imagine asking for it, and we would rather not go on the trip.

If we were going to ask for it, we would do it in a way we think would be honorable. We would make the request when the trip was first conceived, and we’d have the nerve to insist on a yes or no response before our participation continued. To make the demand after it’s too late to call off the trip feels like extortion — and to make it when the trip is over would be (is) sleazy and avaricious. To us, you aren’t behaving honorably, which makes it impossible for us to give into you without feeling as if you’re taking advantage. It’s worse than that: Because of our long, amiable relationship, we feel violated by your demand.

7) Frank: I’m asking for 25 percent of what’s left in The Pot taken “off the top” so I’m paying half my own commission. Reply: Maybe we aren’t good at math, but this argument makes us feel crazy. Whether you take 25 percent “off the top” or 25 percent of what we get after the unspent money is divided in half, the cost to us is exactly the same. In other “words”: 25 percent of $10,000 = $2,500; $2,500/2 = $1,250 = our cost of the fee; $10,000/2 = $5,000 each; 25 percent of $5,000 = $1,250 = our cost of the fee.

It seems to us that one of two things must be true: A) You weren’t competent to reckon the bills on the trip. If you were providing “professional” services, we’d ask for an accounting and would be within our rights to demand that a surcharge be made against your half for any bills you overpaid. B) If you understand that Point 7 makes no sense, you think we are a lot dumber than we are and you are trying to put one over on us.

                                                                  •        •        •

Of course you don’t have to read what I write to you, and it’s natural for everyone to avoid information that doesn’t confirm their existing beliefs. (Unfortunately, pain may be the only effective inducement.) If your existing beliefs were functional, you wouldn’t be having your continuing conflict.

The emotional experiences encountered during the grief process cause the dysfunction. It sounds bad; it isn’t. This may be your last best chance to discover deeply held beliefs and values that you don’t know you have. Once discovered, you can figure out where each came from and whether you want to hang on to it, modify it or chuck it.

So long as your lawyers “continue to continue” your court hearing, I’m going to continue to dwell on the notion of fairness.

Your assignment for the next two weeks, if you choose to accept it, is to look at the seven points Frank made and figure out a way he could have made his request so Rita and Ralph would have found it more palatable. Then consider the difference between your way and Frank’s way and give the reason why your way is better.

Do the assignment after making the following assumptions: A) Frank and Rita are siblings. The reason Frank doesn’t drink or party is because he is diabetic and takes good care of himself. Diabetes is a genetic disease Rita has dodged. Frank never complains about the constraints it puts on his life. B) Rita’s financial situation is very superior to Frank’s and the estate is largely the product of good luck. C) Frank does more than hold The Pot for the group. He’s their “dragoman.” He speaks four languages and does all the communication when it comes to travel arrangements and encounters with government officials. Someone in the group is always asking, “Hey, Frank, will you interpret for me?” And Frank does so in a good-natured way. He also handles everyone’s luggage. D) He takes the photographs and puts them into a slideshow when the trip is over; his slideshows are good. E) Ralph and Rita wouldn’t mind giving Frank $1,250 or $12,500 — if they had been approached in a different way. They both have very positive feelings for him, they can make the payment without it having any effect on the way they live, they appreciate what he has done on their trips, and he’s worth whatever he asks for (though they are troubled by argument 7).

                                                                  •        •        •

For a divorce settlement to work, both parties have to agree that it’s “fair” according to a definition they can both live with. Usually, the couple find their way toward settlement over a period of time during which they develop feelings* about what will be the best terms for both, and for the family as a whole. This is an inductive process in which the principles can be derived from the terms that feel fair.

The exercise I suggest helps explicate your ideas about “fairness” in a context that doesn’t carry your emotional charge. Most settlements are the product of induction. If you can describe what you both think is “fair,” and then begin with principles of fairness you both believe in, the settlement can be approached by using deductive reasoning to find solutions to your various issues that are consistent with those shared principles.

I have some doubts about the effectiveness of deductive reasoning in many situations, and this is one of them. Nevertheless, the opportunity to unearth one’s beliefs is valuable and should be exploited.

I used the last letter to get the Frank-Francine-Ralph-Rita conversation out of my mind, and I wasn’t sure how useful it would be to you. Now I believe it’s extremely useful; in fact, it’s so useful that I won’t return your calls unless you say in your message words to the effect of, “I’ve done the second damned Frank-Francine-Ralph-Rita assignment and I’m willing to talk to you about it.”

Your friend,


* I’m using the noun “feelings” and the verb “to feel” in the Jungian sense of a holistic judgment. I would use different words if I could think of them because we usually think of a “feeling” as an emotion, which is different from what I’m saying here.

— 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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