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David’s Divorce Dictionary: Price of Peace

David’s Divorce Dictionary: P is for the “Price of Peace”

Definition: The price of peace is the amount of currency—financial or emotional–that a person is willing to give up in order to achieve settlement and the peace that comes with it.

Discovering the Price of Peace

I was representing a husband in negotiating settlement of a divorce that, after five years of starts and stops, had come down to one remaining issue in dispute: how much of the growth in the Husband’s 401K account since separation would be split with his former wife.

My client and his wife had been separated for 8 years. Their divorce process had been halted when their 19-year old son had a terrible motorcycle accident, suffering a traumatic brain injury. He needed both parents to care for him and shepherd him through his recovery, through his resumption of a college education, and his entry into independent living and the workforce. They did what they had to do. My client and his wife alternated time spent in the marital home where their son completed his rehab; and they alternated driving him to school, waiting until they knew he would make it through the day. Although united in the care of their son, this married couple rarely spoke to each other. Each moved on with their personal lives.

The wife moved in with a man in a lovely country home and worked part-time for a nonprofit agency. She also sold real estate. The husband remained in the former marital home, spending a lot of time there with a woman he loved and with whom he had a healthy and happy relationship. The husband and his partner wanted to live together permanently. If he was able to settle his divorce and buy-out his wife’s interest in the house, they planned to remodel the property and make it their own.

The Lingering Unfinished Divorce

One thing stood in the way; Both my client and his wife carried long-term, heartfelt resentments of each other. The resentments related to disappointments and failed expectations going back to when they were in the first ten years of their thirty-year marriage. They drifted apart slowly and steadily, staying together for their two children. When they finally felt ready to divorce, their son had his terrible accident.

The settlement negotiations and the divorce process was fairly contentious, even though the amount of money at stake to be divided was disproportionately small by comparison to the size of their impasse-driving resentments. There were issues of alimony and asset division—the husband had more retirement assets than the wife and, in all honesty, the wife’s ability to earn income and acquire future assets were less promising than the husband’s. The wife’s partner was a person of very modest means; the husband’s partner was financially secure. Yet neither the husband nor the wife would have any problems making ends meet after the divorce, as a result of their personal resources and their intentions to marry.

Yet despite several four-way meetings and mediation sessions, the husband and wife could not settle their case. They each felt the other’s position on the last money issue was unreasonable. On principle, neither would “cave” to the other. Although they had close to $1,200,000 to divide between them, and the husband would not have to pay alimony to the wife due to the emergence of the Alimony Reform Act of 2011 while this case lingered (which made cohabitation an alimony-ending change of circumstances), my client and his wife were locked in total impasse over a $30,000 gap in settlement positions.

Trial Was Looming

Trial would cost $50,000 between them in legal fees, at least. It would take the judge six months or more to issue a decision. That decision could be appealed by either side, prolonging limbo. And trial was uncertain in outcome; each spouse had a lot to lose potentially in comparison to the negotiated settlement provisions. Their daily stress from the seething unresolved conflict was torturous. For my client, he and his partner could not move in together and merge their financial lives until he knew whether he would retain the marital home. His partner respected his strong feelings and supported him unconditionally. But she, an experienced business person, confided to me in a phone call that the money dispute was meaningless in a business sense and that the lingering divorce was impacting her mental health too. I asked if she could get my client to see through the financial issues more clearly. She could not, she said. Whenever she tried he would talk, angrily, about the long-term pain he suffered from the marriage, the sacrifices he has made, his wife’s lack of appreciation, and his inability to bend any further. And he would cry.

Trial was one month away and it was time to ramp up and prepare for what would most likely be an expensive, ultimately dissatisfying exercise in futility. I knew that my client would, one year after the trial, when the dense fog of dark emotion lifted, become very angry that I didn’t “force” him to settle his case. He would accuse me of putting my financial interests ahead of his. Of being more focused on putting my kids through college than putting his financial interests at the forefront.

Every divorce lawyer has seen this pattern and one time or another has faced down these post-trial accusations of legal incompetence and greed. And then, sometimes even faced with a complaint to the Board of Bar Overseers, we must delicately prove to the client that the failure to settle was their choice, not ours. Having transferred the resentments from the ex-spouse to the attorney, former clients are reluctant to acknowledge their control of the unhappy outcome. Blame feels better than admission of financial irresponsibility. Particularly irresponsibility that was driven by resentment and fear and the “fog of war.”

Another Shot at Settlement

Despite his grave reservations, my client agreed to try mediation—two more hours of time, no more. I had to agree to discount the legal fees to be incurred in the mediation process. It was worth it to me. This case needed to be settled, not tried.

In the mediation, some compromise ensued. The clients were now $15,000 apart.

Yet neither would yield the final 15K. My client was very very angry that his spouse would not yield. She became furious by the impasse and revised her demand upward by $50,000. The mediator called the session a bust. The clients were resolved to go to trial.

I asked the mediator if I could talk with my client in our break-out room for a half- hour or so. My client agreed to stay behind. I had to find a way to get him to settle.

The Price of Peace

Then it occurred to me to present a vision to him. “Peter,” I said, “how would it feel to you if this afternoon you went home to Diane and instead of telling her how awful your wife is, you could tell her that the case is settled and that life can move forward?” He said “that would be wonderful, but it’s a pipe dream. My bitch ex will never settle this case.”

I said, “I know. She’s not going to compromise any further. I do think she will dump her position about the extra $50,000. But she won’t go below the $15,000. I’m certain of that.”

Peter responded: “ I can’t give in to her. Not after what she did to me (turns out she had an affair eight years into the marriage) and how I stood by her.”

I told him: “I completely get that.” Then continued:

“Let me ask you another question - How would Diane feel if you went home tonight and told her the divorce case was over?” He winced, then slowly drew a happy and peaceful smile. He said, “David, she would be overjoyed, so happy. She would be so thankful.”

I asked, “Pete, don’t be mad at me, I’m just asking you a question, but as you envision Diane’s reaction to this news, and think about your own feelings in response to hers—would that be worth $5,000?” He immediately said “Yes.” I asked, “would it be worth $10,000?” He said: “Probably it would. Yes it would.” I then asked, “Would it be worth $50,000? He said “No way.”

After a pause I threw one more question out: “Well, would it be worth “$15,000?”

I knew that he felt “Yes it would” but saw that he realized that would mean giving his ex wife everything she wanted. His expression soured.

“I don’t know,” he muttered. “OK”, I said. Then the tears began gushing from his eyes.

Choked up, I waited for him to calm. Then suggested: “Let’s go home.”

Peter and I walked out to the parking lot and talked a bit more at our cars, which happened to be parked side by side. Just small talk. But then, as he was getting into his car, I said

“Hey Pete, think about what price you are willing to pay for the peace that will come from settling this case.”

The next morning he called me with instructions to settle the case at $15,000.

What’s the Takeaway? The most valuable victory one can achieve in divorce is to accomplish a substantial level of peace in one’s day-to-day emotional and physical life. Divorce is rarely all about money. To get past the false battle over money, dig deep to determine the price of peace.

If you have any questions or comments about this article or suggestions for future topics, please feel free to contact me at dkellem@kellemlawgroup.com.

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David Kellem

(781) 304-4001
dkellem@kellemlawgroup.com