Could they do this? Not, I thought, without squarely addressing the parental divorce.
Divorce forces most couples to redefine their parental roles. When both parents want to remain involved in the children’s lives, and when the children will be spending some time in both households, the parents have to continue to deal with each other as co-parents. Their spousal and co-parental relationships were previously interwoven. Terminating one relationship while maintaining the other can be very difficult.
Thomas and Brenda really hadn’t worked through this process. The old family system, with its informal exchanges within a single household, was ending, but what would take its place? Thomas would have to learn to be a primary parent—responsible for feeding the kids, putting them to bed, etc. This would be a new experience for him. Brenda too, would see some changes in her parenting role. She might have to return to work, at least part-time. She wouldn’t have Thomas’s help with chores. She would no longer have a “backup” parent—in person or in name—to support her authority. Instead of telling the kids to clean their rooms “so your father won’t be disappointed,” she would have to assume full responsibility for discipline and order while the kids were with her.
In effect, Brenda and Thomas were becoming single parents in separate households. That would take some getting used to, for themselves and for the children.
About three months later, Diana called me to report that she and Brenda had received a copy of the guardian ad litem’s report. Under court rules she could not send me a copy, but Brenda had authorized her to discuss its contents with me.
Dr. Frances Dorfman, a family therapist, had met individually with each of the children, Gabriel, eleven, and Amanda, eight. She found that both children were distressed by their parents’ separation and ongoing conflict. Each child told Dr. Dorfman that they wanted their parents to get back together. Gabriel showed his emotions more openly and expressed some hostility toward Brenda; he blamed her for the separation. Amanda, on the other hand, seemed to be blaming herself, worrying that she hadn’t been “nice enough to mommy and daddy.” Dr. Dorfman suggested that Brenda and Thomas reassure Amanda that she had not done anything to cause the breakup.
Both children expressed a strong preference for staying in the family home and continuing to attend their current school. Gabriel, however, made a point of saying that he “loved his parents equally” and that, “to be fair,” he wanted to spend exactly half his time with each parent.
After interviewing both Brenda and Thomas, Dr. Dorfman found that both were committed to the children’s well-being and fully capable of being custodial parents. The report noted, however, that Thomas expressed intense hostility toward Brenda and was finding the transition required by divorce very difficult.
Dr. Dorfman strongly endorsed shared legal custody, finding both parents eager and able to participate in major decisions about the children’s medical care, education, and religious upbringing.
To my relief, Dr. Dorfman recommended that the children should continue to live primarily with Brenda because a 50/50 split would be too disruptive. But Dr. Dorfman recommended that Thomas get substantially more time with the children: three weekends out of four, at least one dinner during the week, and equal time during holidays.
So far so good, I thought. I predicted the judge would give Brenda primary physical custody.
I was right. In her next call, Diana said that the judge essentially accepted Dr. Dorfman’s recommendations. The judge left Thomas’s support obligations unchanged.9
“Okay,” I said to Diana. “What comes next?”
“The case should settle,” Diana said, with a slight laugh, “but it’s anybody’s guess whether it will.”
The problem was that the economic, emotional, and custody issues were so tightly interwoven. Without significant movement in at least one of those dimensions, she said, she couldn’t see how this Gordian knot was going to be untied. Brenda’s demand for sole physical custody wasn’t just an issue of personal identity or parenting preferences; it directly affected her income. Under Massachusetts law, as long as Brenda retained custody most of the time—two-thirds or more—Thomas had to pay the maximum amount of child support for his income bracket: about $4,800 a month. Right now, under the judge’s recent order, the kids were spending slightly more than two-thirds of their time with Brenda. But if the custody balance tipped further in Thomas’s favor, the amount of child support might be reduced under the new Massachusetts child support guidelines. So Thomas had a powerful economic incentive to seek more time with the children.
The final hearing was scheduled to take place ten months later.10 If the Thomkinses couldn’t agree on custody by then, the judge would make that decision for them.
And Brenda? Any new thoughts on the money issues?
“She won’t move,” Diana said. “She isn’t being realistic.”
With regard to the house and Bill’s company stock, an even split was very likely. But, as Diana had explained to Brenda, the stock was not publicly traded and Thomas had only a minority interest and no control. A court would not place a high market value on it. If the Thomkinses persisted in fighting over this issue of valuation, they would each have to hire dueling experts to value it. And that, Diana thought, was just a dumb way to spend their money.
The inherited property was a much bigger problem. Thomas’s portfolio consisted of publicly traded stocks and bonds, now worth about $1,050,000. When courts decide how to divide inherited property, they take many factors into account—but none of them favored Brenda. One was how long ago the property was inherited. Thomas’s mother had died only five years ago. Another was how the inherited property had been used during the marriage. Thomas had used only the income from the securities (about $25,000 annually) for family expenses but hadn’t touched the principal, so the inheritance had not affected the family’s living standard for most of the marriage. In Diana’s experience, on these facts, a court was not likely to give Brenda half of that portfolio.
“But Brenda insists that I continue to demand exactly half of everything. She’s not negotiating!” Diana said. “Her intransigence is really not helping the situation. On the other hand, judges have a lot of discretion. A court might give her what she’s asking for. We can certainly show that even if she gets half of all the property, her standard of living is probably going to drop.”
I was feeling a bit sorry for Diana. Brenda was not an easy client. In fact, I had to admit to myself that Brenda’s behavior was starting to annoy me. I thought she sounded reckless and narcissistic. A mom with two kids has an affair, dumps her husband, and now thinks her soon-to-be-ex should support her so she doesn’t have to go back to work? Meanwhile, what was happening to the kids? Nothing good, that was for sure. As far as I could see, Brenda had never accepted responsibility for her own contribution to the conflict. I had to remind myself that divorce doesn’t always bring out the best in people.
I heard nothing further about Brenda and Thomas for nearly ten months. Shortly before the trial date, Diana called to say that Brenda was still refusing to negotiate and the case was going to court.
I was very surprised. Divorce cases rarely go to trial. Most cases are settled with the help of lawyers, mediation, or both.11
Diana explained, “Thomas made an aggressive final settlement offer that offended Brenda.”
Privately I thought, Brenda was offended? That’s not a basis for making a wise decision. But I told myself to listen to Diana’s account before jumping to conclusions.
The latest skirmish, according to Diana, had started a few days before when Diana got a call from Thomas’s attorney, Glen Palmieri. He was a bit vague but said he was prepared to offer something that would give Brenda “most” of what she wanted, including the house and primary custody. But the inherited property was not negotiable, Palmieri said. That was “sacred” to Thomas. “It drives Thomas crazy to think that one cent of his parents’ money might go to Brenda and her new boyfriend.”
Diana chose not to argue the point. They both knew each other’s arguments. She told him to put his offer down on paper.
A few days later, a written offer arrived: Child support at the current level, as required by the schedule. A parenting plan that maintained the status quo—about a 70/30 split of the kids’ time—but called it “shared physical custody.” (“Interesting,” Diana thought. “Labels are important to Thomas.”) Full title to the house, subject to the mortgage (a net value of $400,000). No other property and no spousal support. All in all, Diana considered the offer very one-sided but not outrageous—far better than anything Palmieri had suggested before.
Then she read the cover letter, which contained a threat. “This is a final offer,” it said. If Brenda didn’t accept it, Thomas would go to court and ask for a fifty-fifty physical custody split.
Diana thought to herself, Making that kind of threat is the wrong way to deal with Brenda. My job has just gotten a lot harder.
As Diana predicted, Brenda bristled when she saw the cover letter. “Final offer?” she said contemptuously. “It’s an empty threat. I don’t believe for a minute that he really wants a fifty-fifty custody split. He’s prepared to accept the status quo if we give it a nice label. And I think a seventy-thirty split is actually what he’d prefer. Fifty-fifty would be a disaster for the kids—and for him! In a week he’d be begging me to take the kids off his hands. Surely the judge would see that. Besides, I don’t like the idea of calling the status quo ‘shared physical custody.’ Not when he’s threatening a fifty-fifty split to get me to accept less money.”
Diana thought Brenda was probably right about Thomas’s true preferences, but she didn’t want to get sidetracked into speculation about his motives. She wanted to focus on the proposal, help Brenda evaluate it, and decide how to respond.
She explained the terms one by one.
The parenting plan was good for Brenda, Diana said. “If you can look beyond the label, it really is what you want.”
The support figures were not unexpected. Brenda would get full child support but no spousal support—and she would probably get about the same in court, although she might do somewhat better.
As for the property, “In essence, he’s offering you four hundred thousand dollars out of a total property value of about $1.8 million, depending how you value the company stock,” Diana said. “If you put the inherited property aside, he’s offering you exactly half of the undisputed marital property. And you’re getting the better half. You’re getting the house, while he’s getting stock that isn’t marketable. That’s a good trade for you.”12
“Well, I’m not putting the inherited property aside,” Brenda said. “How am I supposed to pay the mortgage and taxes?”
Diana nodded. They had discussed this several times. “You might have to go back to work, at least part-time.”
Brenda shook her head. “It’s too soon. The kids need me at home. This is what makes me so mad. Thomas is punishing them because he’s mad at me.”
“That may be,” Diana said. “But the immediate task is to decide whether this offer is better or worse than what you could probably get in court.”
She then spelled out the opportunities and risks of going to trial. “Let’s talk about custody first. If you go to court, let’s assume the worst: Thomas makes good on his threat and asks for a fifty-fifty split. What happens next? The judge will interview the kids. That’s something to think about. How do you think they’d react to another set of interviews?”
Brenda looked thoughtful but didn’t say anything.
Diana went on: “If the judge interviews the kids, Gabriel might say he prefers a fifty-fifty split. That’s another risk.” Although Gabriel was not yet fourteen and didn’t officially have a vote, his preference could influence the judge. “Now, is the judge going to give Thomas fifty-fifty? Probably not—I agree with you there,” Diana continued. “But there’s a significant risk, I’d say one in three, that he’ll give Thomas more than one-third of the time with the kids—which could mean less child support for you. So there are some real risks here.” On the other hand, Diana said, Brenda might find it easier to manage part-time work if the children were spending more time with Thomas.
Brenda’s face was impassive, but it was clear she was listening.
As for spousal support, Thomas was offering nothing, but Diana thought it unlikely that Brenda would do better in court. The judge would consider her age and work experience and might well conclude she had the capacity to earn $40,000 or $50,000 a year. So she should not expect much, if any, alimony.
Diana moved on to the property issues. Thomas was offering Brenda about 22 percent of the total property value. “I know you want half of the total,” Diana said, “but I can tell you that the odds are ten to one against it,” mainly because the inherited property hadn’t greatly affected the family’s standard of living. Palmieri had also threatened to bring up the adultery issue in connection with the inheritance, Diana warned. “He’ll probably say something dramatic like, ‘Thomas’s mother would turn over in her grave at the thought of her money subsidizing Brenda’s life with a new man!’ And who knows? The judge might be influenced by that.”13
But there was some good news: Diana was very confident that a judge would give Brenda more than 22 percent of the total asset value.
Brenda brightened at this. “How much more?”
Probably something in the range of 30 percent to 40 percent, Diana said. That could add a significant cushion to Brenda’s financial life—as long as it wasn’t in the form of company stock.
Brenda was looking more animated now. She asked whether Diana thought she should accept the offer.
“No, I don’t,” Diana said. “At least not yet. I suggest we make a counteroffer asking for forty or forty-five percent of the total property. If we can get Thomas up to thirty percent or so, I think you should definitely take it. Even if they offer less, I think you should very seriously consider it. The costs of litigating aren’t trivial. Frankly, I think you and Thomas need your money for other things. You need every cent for other things. And a trial will take a tremendous emotional toll on you and the children.”
Brenda looked down at the table, then shook her head. “That’s just what Thomas is banking on. I know him. He’s dug in. He won’t change his mind. This really is his final offer. He expects me to take his stingy offer instead of going to trial because I’m the one who’s supposed to be ‘thinking about the children.’ Why doesn’t he think about the children? He’s using them as hostages. I don’t respect that and I won’t give in. On principle, I think what he’s doing is wrong and I don’t want to bargain with someone who behaves this way. Enough! Let’s just go to court.”
Diana spent nearly an hour trying to persuade Brenda she was making a mistake. But Brenda would not be swayed.14
The case went to trial and the outcome was very close to what Diana predicted. Brenda did receive a better package from the judge than what Thomas had offered. She got sole physical custody with a 70/30 split.15 She kept the maximum scheduled amount in child support and even got some spousal support—$750 a month. The court awarded her the entire house, subject to the mortgage, and $170,000 in cash—a package that represented almost exactly one-third of the judge’s valuation of all the property.
But there was no winner here. I ended up thinking, what a terrible waste.16 Brenda and Thomas spent about $150,000 on lawyers, experts, and the guardian ad litem—nearly 10 percent of their combined family assets.17 Sadder still, Thomas and Brenda put themselves and their children through a bruising fourteen months.
Could this outcome have been avoided? The mediator in me thinks that if the court had required mediation before trial, the Thomkins case might very well have settled. I also wondered about Palmieri. These were difficult clients in the grip of very powerful emotions. I thought Diana did an excellent job of representing Brenda, but I had no way of knowing how Palmieri handled the counseling function, which is so criti
cal to thinking through whether settlement makes sense.
Assessment
Now for the core question. Was Brenda’s refusal to negotiate with Thomas wise?
In my opinion, it was not.
There’s no doubt she thought his motives were evil: threatening a custody fight to force her to accept less than what she saw as her fair share of the family’s assets. If her reading of Thomas’s motives was right, I would have to agree that it was an evil thing to do.
But so what? No matter what Thomas’s motives were, I think it was very unwise for Brenda not to follow Diana’s advice and make a counteroffer. In fact, she didn’t negotiate at all. She made one offer through her first lawyer and didn’t move—even when Diana advised it.
I think there was a good chance that Thomas would have agreed to a counteroffer, especially if it were framed in a way that spoke to his emotional and identity concerns. For example, Diana might have presented the offer this way:
“Let’s agree on a parenting plan that uses no label at all. It will simply specify that the children spend three weekends out of four with Thomas. We won’t call it shared physical custody or sole physical custody.18 We accept the scheduled child support, and we are not asking for spousal support at all. If Thomas pays off the mortgage and transfers the house to Brenda free and clear, she’ll drop all her claims to the company stock or the inherited property.”
This deal would have served Brenda’s interests far better than going to court. It would have given her about 40 percent of the total property and a custody arrangement that maintained the status quo. Thomas might have accepted. His time with the children wouldn’t be disparaged by the word visitation. And he could tell himself, “Brenda’s only getting the house,” although in reality he’d probably have to sell or use part of his inheritance to pay off the mortgage.
It will never be known, of course, whether Thomas would have accepted this offer. But framing it as I have suggested would probably have made it more palatable to someone as sensitive to labels as Thomas. He might have said yes, especially if his lawyer recommended it. Or he might have made another counteroffer, which Brenda was still free to reject.
Bargaining with the Devil Page 27