As crass as it sounds, this concept can be an important tool to help resolve difficult family law cases. It usually arises in the context of one spouse having significantly more income and/or assets than the other, and the couple doesn’t have a premarital agreement – their bad. Other essential components to such cases are that the moneyed spouse doesn’t believe their future former spouse is entitled to receive much, if anything, financially out of their divorce, and/or the non-moneyed spouse believes they are entitled to much more than the moneyed spouse thinks is appropriate or necessary. Many a moneyed spouse has had to come to terms with the reality that precious few nonmoneyed spouses leave a marriage empty-handed, and many a non-moneyed spouse has had to come to terms with the reality that some claims just aren’t legally compensable. You don’t get extra money, for example, because you put up with a lazy slob for years.

go away money

Having been an advocate on both sides of this equation, I can state definitively that the work on behalf of the moneyed spouse is best characterized as damage control, and the work on behalf of the non-moneyed spouse is all about quantifying their claims. As a mediator in this situation, I begin by acknowledging to both parties (not necessarily at the same time in the same room) that although their beliefs may be legitimate, they will need to compromise them in order to reach an equitable resolution, which is the essence of every settlement.

If settlement isn’t possible, and the case has to be tried, then both parties must be made aware that they will have to pay their attorneys for many hours of intensive trial preparation. One colleague counsels his clients to count on at least three hours of trial prep for every hour of trial. I have been known to ask moneyed spouses, “Who do you want to pay? Me or her/him? And don’t get me wrong; choosing me works for me.” Another down side to this is that the moneyed spouse may be required to pay some or all of the ex’s attorney’s fees at the end of a trial.

Nevertheless, some cases must be tried. This is, after all, one of the reasons why we have judges. Sometimes it takes a stranger in a black robe, as one judge has been known to say, to decide which party prevails after they present their competing claims. This process is time-consuming and expensive in every respect (financially and emotionally, to name just two), but can be well worth the price when there is a lot at stake and one party is being stubbornly unrealistic and therefore unreasonable.

We stand ready to assist our clients in dealing with these issues, and will propose our recommended method of resolution, namely, by negotiation, collaboration, mediation, litigation or arbitration. Our recommendation may well change during the course of the proceedings, particularly if alternate dispute resolution methods (negotiation, collaboration, mediation) are unsuccessful. We always keep in mind that litigation may be the only viable alternative in some cases.

Pamela M. Copeland

Pamela M. Copeland is a New Jersey Supreme Court Certified Matrimonial Attorney, Mediator, and Collaborative Professional committed to providing you with the highest quality family law legal services at a reasonable cost.
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