“What makes family law so difficult?” I ask Laura Wasser, one of Los Angeles’ -- and America’s -- most famous divorce lawyers. “Money and kids,” she says without hesitation. “Kids and money,” echoes Phyllis Bersch, who practiced with Wasser’s dad for many years before joining up with her own daughter, Rachel Juarez.
I have a third candidate for that list, I’m sorry to say: divorce lawyers, not including the aforementioned Wassers and Bersch/Juarez team.
If you were to sit down and try to come up with the worst possible way to resolve the most intimate and important issues in a person’s life, especially in a crisis situation laden with guilt, anger, regret and potential recriminations, you couldn’t come up with anything that comes close to doing as much damage as the adversary system.
The goal of every divorce should be to find common ground, to agree on reasonable and fair solutions, and to do so as calmly and agreeably as is humanly possible.
The adversary system does just the opposite, particularly when wielded by those working on an hourly basis.
The best thing for a family is to settle. The best thing for the lawyer is to fight.
The best place to settle is almost always somewhere in the middle. The adversary system pushes each side to stake out extreme positions -- full custody, no money, money for life -- and then take years to work though the process.
A trial is a disaster from which a family may never recover. A trial is a boon for both sets of lawyers and an invitation for a person trained in law to instead play God. Or King Solomon, at least.
Of course, most cases don’t go to trial. That’s because in most cases, the money is gone by then, wasted by both sides in endless motion practice, not to mention all those hours of such patient vetting by phone. “Stop talking to your lawyers,” I tell my divorcing friends. Shrinks are cheaper.
Some years ago, there was an effort here in California to protect the “family home” from the jaws of divorce. The family law bar would have none of it: How else are you going to pay off those bills unless you sell the house?
Wasser, whose clients can afford to pay her and keep the house, is still horrified by what she sees. I did her podcast this week, “Divorce Sucks!” (sorry, but it does), which promotes a different approach. “It’s Over Easy” is how this egg gets cooked. She’s serious about that. In her most recent high-profile case, representing Lauren Sanchez (the next Mrs. Bezos) and her ex (who heads one of the top talent agencies in town), Wasser was the only lawyer on the clock, and she was representing both sides.
When it came to Sanchez’s divorce, Sanchez got it exactly right. She and her husband picked someone they both could trust and gave her the power to come up with a reasonable way to allow the family to move forward. Share custody of the kids. Resolve who owns what and who owes what. Do it calmly, privately, with as little acrimony as possible. Agree in advance to agree. Let Laura decide. Or Phyllis or Rachel or whoever you trust.
What would two more sets of lawyers, complete with two more sets of forensic accountants and tax advisers, have added to the process?
Years of time.
Millions of dollars.
Boatloads of acrimony.
Nineteen years ago, I set out to learn everything there was to learn about divorce law. It was a lot easier than it sounds, because there is less law than you may think (“the best interests of the child”?) and more discretion than would be considered tolerable in a business case. Then I set out to write a book about it, which is where I failed.
“Put it in the drawer,” my wise agent, Binky Urban, said to me. She’d never said that to me before.
“Then what do I do?” I pleaded.
“Close the drawer,” she said.
And I did. It was too angry. I’m a pretty great lawyer, but (you can ask Laura’s dad), I was a terrible client, ricocheting between emotional poles. It would have been easy for a lawyer to take advantage of me. I practically invited it. Luckily, my lawyer was Laura’s dad. She learned from the best.