Monday, April 23 , 2018, 2:46 pm | Overcast 62º

 
 
 
 

Brian Burke: About Your Divorce (Letter 21)

Responses regarding conversation overheard at airport prove brilliant

Dear Nick and Dear Nora:

I think you’ll like this letter. It’s about how smart you both are.

I remain focused on the conversation I heard at the L.A. Airport. Frank, Francine, Ralph and Rita were back from a long and lousy trip. Frank served as The Pot (1) and as the group’s dragoman — just as he had in the past.

It was time to split what was left in the pot, and Frank wanted 25 percent “off the top” as compensation for the work he had done for the group on this trip. Heated conversation ensued, and they didn’t notice that I was taking notes. Ultimately, I was able to sort out seven reasons Frank gave for his claim, and I asked you to anticipate the counter-argument Ralph and Rita were likely to make to Frank’s justifications. You got them all.

I described the responses in the last letter and asked you to suggest ways Frank could make his request more palatable. Your responses were brilliant and, in most cases, similar. Here is what you said:

1. Frank says he’s done the job six times because it was “thrust” upon him; he never agreed to do it. Therefore, he feels he can make his claim even though it comes after the fact.

You both thought the worst thing about the way Frank made his request/demand was that Ralph and Rita couldn’t agree to it without a tacit admission that they took advantage of him on each of their six trips together.

Nora thought it was similar to having your regular gardener do a special job. The gardener suggests a price you agree to. She hires two helpers, and the job is much more difficult and time-consuming than she anticipated. When she has completed the work, she tells you what happened and explains that your entire payment went to the helpers. She asks you to consider doubling the amount agreed to. Even though there’s probably no legal requirement for you to pay more, Nora thinks you are likely to do it because most of us are willing to pay a fair amount to people who provide their own labor for our benefit (2).

She adds that those who would say, “Too bad, a deal’s a deal,” are unlikely to enjoy a healthy, vibrant, happy garden in the future.

Her point: Frank should acknowledge the deal and ask nicely for the relief.

2. Frank says the work detracted from his enjoyment.

Nick says Frank is making the same mistake he made in his first argument. To do what he asks for, Ralph and Rita would acknowledge by implication that they have taken advantage of him on all their past trips. They might not know why this “justification” is so annoying, but its use reduces the likelihood that he’ll get what he wants. You both think he should let this one go.

3. Frank said he did the job because he was the only one in the group who could add.

According to Nora, self-defeating behavior is what happens when someone sits on a grudge for a long time. When he stews on the gripe without telling anyone about it, he loses perspective and the thing grows without constraint until “it expresses itself like an overripe boil.” Nora would tell Frank to explain that he turned into an overripe boil when he asks Ralph and Rita to forgive his behavior (and still give him the money).

You both felt that a sincere and effective apology by Frank was essential if he wanted to save the friendship and have any chance of getting paid for his work.

4. Frank said he was tired of being the Designated Responsible Person.

To Nick, it was a good point, but it lost its impact when it was expressed as a complaint about the past. Instead, Frank could have said that he’d like to talk about changing the arrangement in the future.

Contemplation of changing the Designated Responsible Person may cause Ralph and Rita to realize how convenient it has been to travel with a sober and somber Frank (and how much it would take to make him happy enough to continue being the Designated Responsible Person).

5. You agreed that Frank was offensive when he said the money means more to him than it does to his friends because they have so much more.

Nora then reconsidered: “If Frank just spit this out as a part of his meltdown, it reminds Ralph and Rita of an important fact. They travel as equals but every expense has a greater effect on Frank and Francine. That’s easy to forget, and I think it’s something Nick and I have done.”

“Later, as a part of his apology, Frank can say something like, ‘I’m sorry for what I said about the money; of course it doesn’t have anything to do with it.’”

6. Frank told Ralph and Rita that they’ve forgotten what it’s like to be in his economic position.

You think this is probably true, but does Frank expect them to have a magical experience of being Poor Frank? You think this is a desperate plea from someone who thinks he’s not being heard; he’s like an unattended baby who cries louder and louder when he’s not getting what he needs. Nora asked me to remind Nick that one eventually attends to a crying baby.

7. Frank claims that taking25 percent “off the top” costs Ralph and Rita only half as much as it would to take 25 percent out of their half.

You agree Frank is dead wrong (3). It was Frank’s one point that wasn’t personal. Yet you agree that it was his most serious mistake, and not because it suggests he is incompetent to handle the trip money.

Nick explained, “This has happened to Nora and me in business. How can you deal with a guy like this? If you give him exactly what he asks for, he believes you are paying half of the actual cost. You have the same problem if he mistakenly believes your cost is twice what it really is. Arithmetic is an essential basis of any business conversation.”

Nick continues with particularly good insight. “Apologies are cheap. In this instance, Ralph and Rita say they feel violated by what Frank has said in his attempts to make Rita and Ralph feel guilty. When you’re accused of something you think you didn’t do, what’s it going to take to get you to change your mind?” (4).

“Frank has to let them know that he understands how he has hurt them, and he has to make it clear that he has not been hurt by them.”

Nick suggests language Frank could use: “I haven’t been hurt by you, and it was very wrong of me to pretend I had. You have been good, dear and fun friends. I deeply value those friendships.”

“I haven’t injured anyone but myself. My problem is self-inflicted. I still think what I do on our trips has economic value, and my belief is undoubtedly amplified because money is so terribly tight for me right now. By not asking for some sort of material recognition for what I do on the trips, I’ve had a sense of continuing self-betrayal. When I finally spoke up, I made the situation worse, which was my greatest fear and the reason I stewed.”

That may or may not get some sympathy or empathy, but Nora says that Frank should promise Ralph and Rita that, one way or another, he will get a second opinion on his arithmetic. It’s impractical, but he should make the offer.

Now, my friends, here’s the punch line. How do your insights apply to divorce in general or to your divorce in particular? The answers could be in terms of abstract principles or something concrete and specific.

With continuing interest and concern,

Your best friend,

Bucky

1. I capitalize The Pot when it refers to Frank personally. When referring to the money in the pot, it is printed in lowercase.

2. Performance of the terms of a contract can be excused if there’s been a “mutual mistake of fact.” Here, the gardener was mistaken about the amount of work required. The owner didn’t consider the amount of work, so he couldn’t have made a mistake about how much work was involved. However, it’s possible that a judge who wanted to do “justice” could imply or impute a mistake on the owner’s part. The contract disappears and the gardener gets paid the “reasonable value” of her services. This is another example of the inherent unpredictability of judicial decisions.

3. If the pot is $100 (add as many zeros as you want), and Frank took $25 off the top, $75 is left. Ralph and Rita get half: $37.50. If it comes from their half — $50 — and Frank gets 25 percent of $50, he gets .25 x $50 = $12.50 leaving Ralph and Rita with the same $37.50.

4. Consider how we react when accused of racism or sexism when the behavior complained of is something we’ve being doing for years without anyone taking exception to it.

— 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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