Divorce – Winning and Losing
As an Atlanta based Divorce Attorney at least once a week I am asked by a perspective client … “What is your record? How often do you win cases like mine?” Although I have been asked this question hundreds of times over the years, I still cannot help but wonder what they expect me to say. Invariably, I will advise the client that winning and losing is normally never as clear cut as they would think and that every case is different from the one that went before it and the ones that will follow. Real life Court battles are never as portrayed on TV, a zero-sum game with one party clearly coming out on top. Often you find your victories where you can or work feverishly to minimize the losses. Divorce lawyers often work in a world of gray. Then, a case comes along that forces you to reassess your perspective and re-define “wining” and “losing”.
I handled just such a case this week. It was a divorce matter. One minor child, 5 years old. Family home with a small amount of equity, no real joint debt and both parties are employed. I was hired by the mother, the father is representing himself. A pro se litigant is often a recipe for disaster, but I had high hopes. In a contested divorce matter the parties generally fight about only three things.
1-Custody and Visitation
3-Division of Assets and Debts. Three was never a problem here and I never got the sense that 2 would be a sticking point. What was the problem. Both parties wanted primary physical custody and the parties, who had been separated for about four years, had been sharing custody 50/50 for almost the entire time. Even more frustrating (from an advocates point of view) was that both parties were good, attentive and loving parents. They both worked full time, but had enough flexibility in their schedules that they actually helped each other out for drop-offs and pick-ups. As their daughter is to enter kindergarten in the fall, each party was seeking to enroll her in an elementary school near where they live, on opposite sides of DeKalb County in metropolitan Atlanta. Both schools were good and had won many state awards.
I asked the Court for a Temporary Hearing so that we could ask the Judge to decide custody, while we worked the matter out. As I prepared for the hearing, the only facts that argued in my client’s favor was that the school near her home was arguably superior to the one closer to her husband, and because of where the schools and their work sites were located, the logistics of getting their daughter from one home to the other would be slightly easier if my client’s home was the primary residence. That was it. That was all I had. No drug use, no drinking, no violence in the home. No father that traveled for business, spent too much time at work or was otherwise disengaged. No, what we had was an almost dead heat. Evenly matched parents who both truly wanted what was best for their daughter.
I met with my client the day before the hearing. She reiterated her belief that, while her husband was an terrific father, with her daughter entering formal schooling, a more solid home foundation would be a better situation.
Upon my arrival at the hearing, the Judge asked us if we would be willing to sit down with a mediator before proceeding. I agreed, as I have found mediation to be a successful tool and did not relish moving forward with the arguments I had prepared for the hearing.
We sat down with the mediator and I took about five minutes to outline my client’s position. After I finished, the husband looked across the table at me and told us that he had done the research and he agreed that the school near my client would be the best choice for their daughter, he just wanted to spend as much time with her as possible and, if we agreed to shared custody, would be willing to do all the extra driving between his office, his home and school. My client looked at me and said “That would be great.”
That was it, case over. Well, we still had to arrive at a child support figure. That took about ten minutes. And we have tabled discussion of the equity in the home until after their daughter has started school.
The three of us left the Courthouse together and my client and her soon-to-be Ex-husband walked away together. When I said my goodbyes, they were still walking away, talking happily about their daughter’s impending start of kindergarten.
Now, I think again about the question at the beginning of this piece. I did not “win” this one for my client. We did not get the primary physical custody that she steadfastly maintained she wanted, up until the day of the hearing. That being said, as I remember them walking together, seeing them put their child first and realizing that although their marriage may have failed, they will be in each other’s lives for many years to come and that they are committed to working as partners for the betterment of their daughter; I cannot help but think I will put this one in the “win” column.