If one party is hurting the other in some way, such as by
stealing assets or harming children or others, this is a different
story and these ideas apply only in part. In that case, the job
of the lawyer is to protect the client from harm, and the function of the court is to enforce the protection of the client. If the
lawyer’s client is the one harming the other spouse, well, that’s
beyond the scope of this article.
Having determined the good will of the client, the lawyer
and client should think about what is best for the opposing
party. Yes, the opposing party. This process generates creative
solutions. I don’t know why, but it has to do with lawyers
deciding affirmatively not to fixate on jousting and planning
for trial or some other litigation-based resolution.
Seeking creative solutions
By thinking about the welfare of the opposing party, the lawyer — or both lawyers and both clients — can divide the matrimonial estate in such a way as to increase the wealth of the
parties, rather than tearing the wealth into little pieces to be
divided among lawyers and clients. Everyone can consider the
estate as if the parties were still married and were cooperating
to maximize its wealth. Divorce law becomes estate planning
law. If there are children, the lawyers and parties can creatively
divide the marital responsibilities in such a way as to maximize the benefit to the children. These processes may lead to
unconventional settlements. That can be scary and daunting
for lawyers, and I’ll get to that next.
Creative lawyers should be cautious lawyers. Lawyers
should know what would happen in court if the case were
litigated, and they should compare that knowledge with
their creative solution. Lawyers should predict the result of
conventional divorce litigation, in which the lawyers argue
with varying degrees of collegiality about what would happen if they go to court, and settle on that basis. They should
conduct this review over and over, to make sure creative solutions make sense compared to settlement based on case
law and statutes. An accountant can be eagle-eyed in helping them to make calculations and comparisons.
Accountants can help in many other ways. They can fashion settlements that save the parties money yet still accomplish their goals, as articulated by the lawyers and parties,
and they can determine the cash value of different specific
settlements. In fact, maybe accountants could manage the
whole process. I don’t totally mean that. Accountants don’t
know anything about divorce law, and they don’t have a personal book of history about divorce in the real world. But
there is a gist of concept that accountants, benevolent accountants, compassionate accountants, can divide property
better than we can.
Continual review should reassure lawyers that their proposed settlement is (or is not) reasonable for the client, and,