by Harlene Cohen Bernstein

Being still the flower child of the sixties, I was saddened by the disdain for lawyers so prevalent in our culture.  How can our society come up with a stereotypical hatred for an entire profession at this advanced stage in our development (except for dentists, of course…sorry guys…it’s the pain/mouth thing)?

My naiveté came to a screeching halt thanks to my divorce attorney.  I share this coming-of-age tale in hopes of sparing you the same experience – and saving you tens of thousands of dollars.

My first meeting with my divorce lawyer, let’s call her Satana (not her real name) was lovely.  She was charming, warm, filled with empathy for my situation and overflowing with ideas sure to win the day for me, and more importantly, for the children.   She knew my husband’s newly retained attorney, who she said with great respect was ruthless and who would work against our settling out of court.  Taking clients to trial is how he has become so financially successfully.  And I thought the divorce couldn’t feel worse.  The first meeting was free.  To continue required a $5000 retainer.

I had required the services of an attorney prior to my divorce and since (that’s another story to be written thanks to my ex).  The divorce was the most vulnerable and frightening time I have gone through.  My husband, a lawyer himself and angry and vindictive, was going for full custody of our children and money I had prior to the marriage.

I was easy prey for a highly recommended lawyer who soon became imperious and impatient with my questioning.  I was easily intimidated.

I had to explain my case details to three separate associates in Satana’s firm as each person I worked with would then leave the firm and I’d start anew.  I was billed every time I repeated the same information to a new associate.

When I ran out of funds, my parents very kindly lent my $30,000.  I had the check with me as we sat in a mediation meeting with my husband and his attorney.  When Satana saw the check, she told me with an air of urgency and secrecy to hand it to her.  If they knew I had this money, she implied, they could try to get it.  After the meeting, the check went into her escrow account.  I was not consulted, nor was this my intention.

I filed a grievance against my attorney.  She had to hire a law firm to compile a response.  My hope was that she would take future frightened clients seriously…if not out of a compassionate heart than from concern for her own career.

Having written this, I see the real lesson for me is not that all lawyers fit the ruthless mercenary stereotype, though, of course, some do.   But rather, that when my back seemed up against the metaphorical wall with two unscrupulous lawyers and one soon to be ex-husband closing in on me, the cavalry did show up.  When I dropped my fear long enough and looked around, the help I needed was right there…not to rescue, but to empower me.  As a result of walking through this experience, I had reclaimed a part of myself.  A measure of fear was replaced with trust and confidence.  And that felt great.

by Ken Hickey

Many times I mused upon the occasions when people in the middle of the ending of a relationship, either marital or not, have come to me and asked whether they should be consulting a lawyer at this stage.

First, I ask somewhat blithely what is the “stage”?  People always assume I know the ins and outs of their relationship even though they haven’t told me anything that could lead me to conclude they’re experiencing a problem.  I usually get a long and rambling response.  It covers the gripes and grousing of the person talking and none of the issues or points of disagreement that are the basis for the breakup.

Let me give you an example.  Diana says to me:  “Charles and I are pretty sure we’re going to get a divorce.  Should I get a lawyer now?”  I reply: “Why are you divorcing?  I thought you and Charles were very happy.”  Diana then talks for fifteen minutes about what a schmuck Charles is, how he never considers the things that make her happy, how he is always talking with the guys and watching football, how he used to be so loving, and how she is miserable.

I then say the words that cause her – and everyone else I’ve ever said them to – a great deal of discomfort, “Yes, but why are you getting a divorce? Why are you considering a divorce?”  Diana, at this point, looks at me very puzzled.  She says something like “I don’t want to be married to Charles anymore.”  I say “Why?”  She says “He doesn’t love me and I want to be loved.”  We then discuss “love” and how definable it is.

This, of course, gets us to the real point – that she and Charles need to talk deeply to one another about their feelings and see where the conversation takes them.  Maybe their problem is solvable; maybe it’s not.  Maybe they’re still in love but a different type of love than the one they first experienced.  Maybe they’re not in love and never were.  In this example, the couple does need to talk to a professional.  But, that professional is not a lawyer.

Any old school lawyer would say this.  Unfortunately for marriage, most of my fellow compatriots are not of the old school.  By “old school” I mean counseling their clients on the best course irrespective of the outcome to the lawyer.  New lawyers are looking for the case that will make their career.  In the interim, they’re looking for the most remuneration (money, money, money) that they can earn.  They will say we need to strike first; we need to assume it will be a war, we need to stake out our positions, we need to get control of all the money accounts, and many other “we-isms.”  But for them, the “we” is not the persons in dispute – Diana and Charles.  For them, the “we” is the lawyer and the person in his or her office.  Notice that with these lawyers, there is no talk about who is in love or what may be missing. The talk is about how to win the case, where winning equals a divorce with most money going to the lawyer’s client. The meeting, not surprisingly, usually ends with a battle plan – and payment of the first installment of a fee agreement.

What happens next, you might ask?  Well, it all starts.  Usually unbeknownst to – and frequently out of control of – the actual parties, Charles and Diana, the process takes on a life of its own.  The next day, when Diana is ticked off at something, she mentioned to Charles that she has a lawyer.  Charles goes berserk.  The following day, Charles consults a lawyer.  Now, you may ask ‘why?’.  Why doesn’t he try to work on the marital problem instead?  The answer is quite simple:  getting a lawyer is easier and it’s what “she” did.

I don’t need to go into further detail here but only tell you that the two lawyers start arguing with one another, for months on end, about everything concerning Charles and Diana.  They are arguing both about things they know, and about things they presume to know.  They file complaints; they take depositions; they argue discovery; they file interrogatories; and nothing goes anywhere.  The legal system takes control of the relationship and due to the slowness of the process and the lawyers themselves, a resolution of the relationship is never achieved.  In fact, the relationship may be permanently harmed just by the legal process.

Charles and Diana wonder where they are along the way.  They wonder why they aren’t supposed to talk with one another when it seems that talking may solve some problems.  They wonder why they’re giving all their hard-earned money to two lawyers who may have their own serious marital problems.  They wonder why no one in the process is really listening to their problems.  And they wonder, above all, why they are even unhappier now than they were a short time ago.

I know this scenario is not true all the time, but I have found that it is true most of the time.

A final musing from this old lawyer: the only winners in a lengthy litigation are the lawyers.  I remember my professor in law school for estate tax telling me that most of the cases in the casebook were about only ten major estates that were litigated in the 1930s and 40s.  When I had read the fifth instance of the Appeals Court ruling in one estate, I asked the professor how the dispute was finally resolved.  He said that it was not resolved.  Never.  Why? The parties ran out of money to pay the lawyers.

Always find the right lawyer.  He or she need not be an expert in divorce law.  But he or she should be someone you trust and can confide in.  Ask for general relationship advice and do it early.

Broaching the Prenuptial Agreement

by James J. Gross

Odds are, sooner or later, you are going to get married again.

A prenuptial agreement is a good way to plan and communicate with each other about the way you will combine your finances, operate financially during your marriage, and explore your values and expectations.  

A prenup can bring certainty and financial security to both partners, not just the one with the most assets.  It can protect the assets you each bring to the marriage.  It can specify how you will create a marital estate together.  It can avoid disputes in the event of death, disability or divorce.  It can ensure an inheritance for children of a prior marriage.

It doesn’t matter when you bring the subject up as long as it is plenty of time before the wedding.  Don’t think of it as a contract you slide across the table to your intended as you propose.  It is more of a series of discussions that will ultimately be commemorated in writing.

The way you bring it up is important, too.  Instead of “I want a prenup”, bring it up in the general planning discussion about putting your finances together and how you are going to operate as a couple financially after you are married.

Marriage Equality Institute suggests something like this as a conversation starter:

"Let's talk about our future, what we both want, our lifestyles, our present and future finances. I want to make sure all our money issues are addressed and resolved in an agreement. Then we won't have them hanging over us when we get married."

There is also a good worksheet called “The Commitment Conversation” at http://www.equalityinmarriage.org/cc.pdf.

If all else fails, you can blame it on me. “My lawyer says I can’t get married without a prenup.”

by Harlene Cohen Bernstein

It was a long time after my second divorce before I would even fantasize about entertaining the thought of maybe considering the possibility of socializing with someone the same gender as my ex.   A long time, indeed.

I was steadfast, because I’d been hurt.  My mother started her well-intended nagging immediately post-breakup.  Her generational belief – and decree – was that despite my years (very many) of self-support (very successful), I wouldn’t be secure until I “married a nice Jewish man.”  (In her defense, she has since dropped the “Jewish.”  After watching me through two divorces she has arrived at the devastated acceptance that even her best efforts can’t force my candle into the proverbial menorah.  Now she just wants me to find some man without a significant criminal record.  Our phone conversations have begun to end with her saying, “Be good……no, no, no, don’t be good!”)

Her pleas alone could not sway me, because pain made me a coward.  But after a while, I began to hear other encouragement.  One therapist, the angel who treats both my body and spirit, suggested I might want to dip my toes into the dating pool.  Another, who treats what’s left of my mind and heart, confirmed it was time to swim.  Wondering if I’d healed enough, I compromised and began to wade.

Much to my surprise, dating at my age (and with the wisdom of two failed marriages) has been fun!

There’s no pressure to find someone so I can legitimize myself with marriage.  There’s no pressure to find someone so I can begin a family.  There’s no pressure to find someone so I can be financially secure.  In short, there’s no pressure.

And because there’s no pressure, I’ve relaxed into a great time with some interesting and lovely men.  A physics buff myself, I immediately attracted three men who gave me books on the subject and entertained me with hours of discussion about it.  One guy, now a friend, flew me through wondrous clouds on his private airplane.  Another, a National Geographic photo-journalist, introduced me to his adult daughter who is helping to save 500,000 people in Niger who are dying of thirst.  And every man I’ve dated has introduced me to either wonderful music or books.