Personal Wealth Quarterly Divorce with dignity

Second Quarter 2000

MARITAL MATTERS

Divorce with dignity

Splitting up may be a tough process. But, cautions Linda Stafford, guard against allowing your legal representatives to cry all the way to the bank

Divorce, once a disgrace, has become a great diversion and reaper of dividends - especially if the stakes are high. But it's not always jilted spouses and jolted children who come off best. Divorce lawyers can make tremendous profit out of the pain of broken marriages.

We may be nowhere near the sorry state of New York City, where according to New York magazine divorces generate about US200m for law firms.

Amanda Catto . . . avoid costly litigation and acrimony

Colleen Currin . . . it boils down to "soort soek soort"

But with a staggering 50% of marriages ending in divorce in SA, splitting up is becoming big business here, too.

Human nature being what it is, there will always be couples who turn their marital mistakes into the stuff of never-ending soap opera. The issues may be cut-and-dried - custody and access, maintenance, the division of the joint estate, the costs of the divorce - but the emotions involved can be complex. Luckily for the children, high-profile divorce cases are no longer permitted to be ventilated on the back pages of Sunday newspapers.

"This is one area of the law in which you are not dealing with rational human beings," says Bowman Gilfillan director and head of family law Colleen Currin. A man might make multimillion-rand decisions by day, but at night he will telephone his attorney to say that he drove past his ex-wife's house and she had left five lights on.

Currin points out that she always starts round-table conferences with a client, estranged spouse and attorney with the words: "As we sit here, we lawyers are getting richer and you two are getting poorer . And when you get poorer, your children get poorer."

But not all divorce lawyers are bent on defusing potentially explosive situations. The more protracted and heated the process, the greater their chances of crying all the way to the bank.

"I feel there is too much showing off between attorneys and their clients - especially those who've been watching too much LA Law," says Johannesburg-based corporate and matrimonial attorney Louis Garb. "There's a feeling among them that you have to act in a particularly aggressive way to make any progress. But they tend to be no more competent at structuring a fair deal than others who don't show off or act tough."

Amanda Catto is a director of Findlay & Tait, the Cape Town office of Bowman Gilfillan, and head of its family law department. She says that "many spouses who endure the torment of a divorce will, upon sober reflection, realise that their legal representatives, in their zealous attempts to pursue an order in their client's interests', have invited unnecessarily costly litigation and acrimony".

Currin believes it boils down to the Afrikaans expression soort soek soort. "If you're in a certain frame of mind, you may heed the advice of someone who says: Go to so and so. He's a real Rottweiler and he'll milk your husband for all he's got.' On the other hand, you may have simmered down and understood the cost implications of being ugly over and drawing out your divorce. In which case, you will take the advice of someone who says: Go to my lawyer. He's firm and knows what your rights are, but he will also make sure that you don't spend thousands on litigation and that you and your ex-husband will still be talking when it's all over."

Indeed, what some warring spouses don't understand is that at the end of the day, the terms of the settlement may turn out to be the same no matter what style of attorney they appoint, tactic they employ and time they take. The only difference will be in the size of the legal fees.

Garb says there's a real danger in listening to the advice of so-called friends. "It's no use trying to bully and to lead your attorney into a settlement . If your opponent doesn't have the funds you think he has - and the fact that he drives a Porsche doesn't necessarily mean he owns it - you may wind up paying R250 000 instead of R25 000 for the same settlement you were told you could expect on day one."

Though the cost of a divorce varies widely, a cut-and-dried one shouldn't cost more than about R8 000, according to Currin. "If it's generally unopposed and there is a toing and froing of letters, a round-table meeting and a drafting and re-drafting of an agreement, it will probably be R10 000-R15 000. But if it drags on and looks as if it might go to trial, it can easily reach R100 000 and more ." However, 90% of even the most acrimonious divorces are settled out of court.

Attorneys' fees also vary - some will ask for a deposit up front from as little as R8 000 to as much as R30 000 - from about R450/hour to more than R1 000/hour. "What you charge depends on your effectiveness and experience and is influenced by whether you have the back-up of a large firm," says Currin.

So how should you go about fighting a tough divorce without losing your dignity and a portion of your children's inheritance?

"There is no norm in divorce - just as there is no norm in human relationships," says Garb. "You're not dealing with computers or mice; you're dealing with the inflexibility of certain emotions and the flexibility of other emotions.

"And every matter is different. You can be dealing with a multimillionaire who's married in community of property, in which case the wife is entitled to half immediately. Or you may be dealing with a man who on the face of it is wealthy but who has carefully hidden assets and who hides behind a trust. There are things you can do to try to find the assets - employing a forensic accountant for one - but they cost the earth and they are not always successful."

If you are a married woman, you should ensure you have a basic understanding of the financial affairs of your husband, stresses Currin. "Not only do some have no idea whether he has shares, but some only have a vague idea of what he does for a living."

So she urges women - and men, where applicable, as more women are the major breadwinners - to make sure that they are fully informed about financial matters which may affect them in a divorce. It's not good enough to sign on the dotted line when your spouse says he is establishing a trust and that you will be a beneficiary.

"The more you know," adds Currin, "the better equipped you are to fight a tough divorce." After all, an attorney must have a basic idea of what is available before issuing a subpoena, for instance.

Your next step is to find a decent, ethical attorney who will work hard for you. And as attorneys don't get their clients by advertising in The Yellow Pages, you will probably be referred to one or two. Remember that less-well-known attorneys, who are lean and hungry and fast, often do better jobs than supposed hotshots. And they do so without resort to intimidation and game-playing.

Some women prefer dealing with women attorneys. They reckon females will be more sympathetic to their cases. There is also a perception, true or false, that the men belong to a boys' club and are slightly reluctant opponents.

Catto says that legal representatives can worsen an already stressed relationship. "The battle scars, both financial and psychological, inflicted often debilitate families long after the divorce is finalised and the legal fees have been settled."

She also believes it's important to maintain a courteous working relationship with the opposing legal team. "Even in tough divorces, there is no reason for colleagues to step into the ring with each other . Their energies would be better focused on attempting to investigate and to resolve the dispute. This is not to suggest that one should capitulate to avoid acrimony - there is bound to be sparring in a contested divorce. It's suggested that the argument and negotiation should be limited to the interpretation and application of the law."

"When choosing a lawyer," says Currin, "you need to know that he or she will ascertain what's at stake and what's hidden. Generally, it boils down to finding the tell-tale paper trail."

It's standard practice at the outset of divorce proceedings for an attorney to ask for a full and fair disclosure of assets. "These facts and figures will enable both parties and their legal representatives to investigate and find solutions to tough issues at an early stage," says Catto. "Nondisclosure not only corrupts the integrity of a client's case but it generally leads to unnecessary litigation and applications to court, thereby pushing up costs."

Legal representatives have a determinate role to play in setting the tone of the divorce, believes Catto. "It's not their role to become their client's psychologist - this can lead to devastating breach of a professional boundary. But they must recognise and be sensitive to their client's stresses and needs. And they must do all that is possible to bring the dispute to finality in a responsible and expeditious manner. This may require a fair amount of tough talk and disciplining of the client."

Catto believes in explaining the nature of the divorce process thoroughly to clients. "It's often fear of the court process and the frustration at how slowly the wheels of justice turn that creates additional stresses for clients."

She also says that clients should be kept up to date on progress in the matter by communicating regularly and advising them what is required of them. "We should allow clients to participate in the process where appropriate. It is, after all, their divorce. And we should keep clients up to date regarding their legal costs. Not only is this fair but it can often prevent them from giving their spouses a sound bashing in court."

Garb agrees that it's sound policy to allow a client to see, say, letters to his or her opponent before they are sent. "This approach also covers you when things go awry and you are blamed."

Currin's third guideline is that it is essential, no matter how hurt and angry you are, not to stoop to the level of your opponent. "At the end of the day, if the matter goes to court, it is the opponent who behaves badly - tapping phones, being abusive, hiding assets - who comes off worst."

The fit also has to feel right. "Some attorneys can be brusque, which may not suit a particular client," says Garb, "but even if the attorney is more sympathetic, he or she will draw a line somewhere."

You do, after all, have wives whose demands are such that their husbands will be cleaned out. And, on the other hand, you have husbands who expect to be able to dump their wives of many years and shirk their responsibilities to them and their children.

Louis Garb

Garb points out that there are divorcing parties who harass their attorneys by, say, phoning them 20 times a day. "When pettiness creeps in at every turn, you have to be firm and instruct your client to restrict calls."

Currin lets on that she has occasionally had to terminate her dealings with clients. "There can come a point when your client's demands are so outrageous and unrealistic that you are not speaking the same language ."

Currin also stresses that "it doesn't pay to be dodgy and to hide assets because, be assured, if you hide one asset and it's discovered, your credibility will go out of the window."

Garb believes that the interests of the children must come first. "I'm not saying all men are at fault but there are many whose idea of contributing to the welfare of their children is letting them tag along on dates with their girlfriends."

Currin believes that counselling works for some people and not for others. "But if you need to air emotional baggage you should see a psychologist because there is no place for it in law. It may sound cold and clinical, but the lawyer is there to make sure you get a good financial settlement."

Today, it's necessary only for the courts to prove a marriage has failed, not to pinpoint the causes of the failure. Surprisingly, though, suing a third party for the breakdown is still quite common practice.

"It's an archaic principle," says Currin, "and you won't get much out of it financially. But it's tactically effective." It can embarrass a husband or wife into an earlier and more generous settlement.

Garb argues that "you don't have to be a genius to be a good matrimonial lawyer. It's not mentally challenging stuff. However, you do have to be good with people and a good strategist." And what you can expect to get out of it depends to a large extent on your marriage contract (see overleaf).

In summary, says Catto, it must be recognised that there is seldom a winner in a divorce action, even if the matter is finalised by the judgment of a court as opposed to a negotiated settlement. "Legal representatives must assist parties by guiding them towards an appropriate resolution of their differences in an informed, sensitive and dignified manner."

Currin remembers a philosophic remark made by a client. "She said she and her husband had not made a success of their marriage, but that they had made a tremendous success of their divorce to the benefit of their children."

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