But, Enough About Waterloo

Written with my friend and colleague, Jenny Bradley of Triangle Smart Divorce in Cary, North Carolina. 

As family law attorneys, we’re asked a lot about ‘what sort of person don’t we want as a client’. There’s a few potential answers, of course, but one type of personality is almost always at the top of the list. You’ll recognize it right away. Here’s an example from history:

We still talk about it today, it was the defining moment of the 19th Century. June 18, 1815, the Battle of Waterloo. The ‘near-run’ battle that saw Napoleon defeated for good and the end of twenty-plus years of almost continuous warfare throughout Europe.

It was a brutal day and the battle wasn’t decided until late evening. The Duke of Wellington, a stoic rock on the field, collapsed that night, in tears, shaking with emotion, he tried to sleep on a pallet while a trusted aide was lying on his bed, dying. He didn’t write his report on the battle until late into the next day, while the wounded were still being culled off the field.

In the days before telegrams, it was a great honor to be chosen to deliver a victory message back to London. Wellington’s choices were few, many of his aides, his second in command, dozens of generals were dead, dying, or badly wounded.

Wellington finished his report and gave it to Lieutenant Colonel The Honourable Henry Percy, his sole surviving Aide-de-camp.

Percy set off for London, still in the uniform he wore at Waterloo. He reached London at 10 PM on the 21st. He tried to present the dispatch at Downing Street, everybody who was anybody was at a dinner party being thrown by a certain high society hopeful named Mrs. Boehm. It was the social event of the year. Percy jumped back in his carriage and went directly to the Boehm home where he was told he would find His Royal Highness, the Prince Regent, soon to be King George IV.

He rushed into the home carrying two captured French Eagles. No one who was there ever forgot the pure drama of the moment when Percy approached the Prince, knelt, and proclaimed, “Victory, Sir, Victory!’

No one, that is, except for Mrs. Boehm. Her take on the historic moment:

“Very few of His Majesty’s subjects ever had a more superb assembly collected together than I had on the night of June 21st, 1815.

That dreadful night ! Mr. Boehm had spared no cost to render it the most brilliant party of the season, but all to no purpose! Never did a party promising so much, terminate so disastrously! All our trouble, anxiety, and expense were utterly thrown away in consequence of—what shall I say ? well, I must say it—the unseasonable declaration of the Waterloo victory. Of course one was very glad to think we had beaten those horrid French ; but still, I shall always think it would have been far better if Henry Percy had waited quietly till the morning, instead of bursting in upon us as he did in such indecent haste.”

‘Such indecent haste.” That sums it up. The one type of potential client we we really can’t abide, the ‘yes, but what about me’ person. No matter the circumstance – sickness, bad weather, natural disaster, news of the battle that changed European and World history forever – it’s all about them.

Not the ideal client in a family law setting.

About Changes

We deal in change. Almost all of our clients come to us to effect a significant change in their lives – adoption, separation, divorce, and more.

These changes are almost always positive – regardless of how it seems at the time. But changes like those we work on everyday necessitate other changes.

The most important being a will. After we do our thing and your family has a new child, or you’re ready to get married with a prenuptial in place, or you’re newly separated or divorced, you need to redo your will and other estate planning documents. Immediately.

How important is it? Very. We know changing wills, health care proxies, and/or pension and insurance beneficiaries are not the first thing on anyone’s mind at any time Most people make a will and file it in a dusty drawer for years without ever thinking about it again. Sometimes that’s fine. Most times it’s not.

Because wills don’t’ automatically change to match circumstances and unlike insurance and pensions you don’t get a notice from a company telling you to check that things are current.

Forgetting to make a change can be catastrophic. Just check in with the estate of one of the great actors of our time who died too early – Philip Seymour Hoffman.

The good news was that even though both actors died so unexpectedly they had wills even though they weren’t married. The bad news is that they executed wills around the time they both broke through in their careers then never updated them.

When Hoffman made his will in 2004 he was in a long-term relationship and had one child. The will left everything to his companion, Marianne O’Donnell, and their son. When he died in 2014, Hoffman was still with O’Donnell and they had two more children.

Because the will only mentioned his son, the estate is hamstrung, it does not have the options it should to take care of O’Donnell and the children without crippling taxes. Apparently, Hoffman did not believe in marriage, which would not have been a problem with the estate had he simply updated his will upon the birth of each child.

As it stands now, the estate has the choice of paying those enormous taxes or setting up a trust solely for the benefit of Hoffman’s son and hope that he provides for the family. Hoffman’s son is thirteen.

Perhaps in all of law there is nothing easier to fix before the fact…. please call us for a free consult.

HBO’s Divorce

There may be a spoiler or two below if you’re concerned at all with the narrative arc of HBO’s new show, Divorce. I’m in it more for the feel, the emotions, and the occasional right-on little detail that I see almost everyday in my practice.

divorce-hboI started watching HBO’s Divorce a week or so ago and am three shows in now. Briefly, it’s the story of a successful business woman, Frances (Sarah Jessica Parker) and Robert (Thomas Hayden Church) living in Hastings-on-Hudson NY, a pretty, upscale town on the Hudson River an hour or so north of New York City. The town, by the way, is pretty much another character.

Anyway, Frances and Robert are at the birthday party thrown by a wealthy couple who are, at best, pretty dysfunctional. People get drunk, nasty one-liners fill the air, there’s a major incident, the husband has a heart attack, the police come, Robert has a near-death experience.

As Robert is collecting his breath, Frances informs him that she wants a divorce. Boom. Out of nowhere. She’s surprised she said it aloud, he’s stunned. At this point we know nothing about Robert and Frances beside the pretty obvious fact that Frances is smart and funny while Robert is more than a bit of a prig.

But it rings true. Frances clearly – though we don’t know why – has been miserable in the marriage for awhile and has been thinking about divorce for just as long. Robert … well, Robert seems to be oblivious to anything that does not revolve around him and his business (he’s a contractor and struggling).

Robert is thunderstruck, begs, bargains, doesn’t accept it, is sure Frances is going through a phase.  It seems that they may, indeed, move on – except, of course, the title of the show is somewhat of a hint which way things are going to go.

We, the viewing audience, soon discover that Francis is carrying on an affair with a professor at Columbia University. That explains a few things. Soon, Robert finds out too. Within minutes of figuring it out, Robert decides that not only is a divorce a great idea but it’s Francis’ fault because she’s the “one who has done evil here.”

Robert embraces being the victim. Pretty much revels in it. Francis is put on the defensive, is locked (temporarily) out of the house, struggles to stay normal ‘for the kids’ (who, refreshingly and realistically have already figured the whole divorce thing out).

Again, this pretty much rings true based on my experience. It’s not like discussing divorce is ever easy, it’s not like there’s a particularly perfect time or place to even bring it up. In other words, it’s hard and the show really hits that and all the ‘cringing’ moments that go along with all that.

Through the first two episodes, it’s as clear as these things can ever be that it’s Francis’ fault because, well, gee, she’s having an affair. Robert, at this point, just appears to be a fairly bitter, fairly ineffectual, fairly irritating guy. We can wonder what Francis ever saw in him, but we can’t see any … reasons.

Then they agree to give counseling a shot. There, Robert hammers Francis over the affair. His ‘holier than thou, I’vehbo-divorce-1200x630-c never fooled around in 20 years of marriage’ gets old fast as he repeats it over and over and over again. Until, with the fifteenth or so assertion, he adds, “But I could have.”

And there it is. Pressed, he admits has been in contact with his college girl friend for, yup, 20 years. They talk everyday, they go on group fishing trips with other alum, they text, they’re there for each other for ‘support,’ but, hey, even though they’ve been tempted, they’ve never consummated the relationship.

Francis is appalled, although now a lot of things make sense for her. She comments that Robert has been having an ’emotional affair’ for the entire length of their marriage. Robert doesn’t get it. He is utterly incapable of wrapping his head around the concept of an ’emotional affair.’ And, he’s not shy about saying it. Over and over, ‘but we didn’t have sex.’

He is without blame. Just friends. He adds that he was in fact, going to cut it off, end the friendship, in person when his women friend was in New York on a business trip. But horrible things got in the way.

“What,” Francis asks.

“Well, a horrible thing.”

“What,” she demands this time.

“Well,” he blabbers, “Nine-Eleven happened.”

Silence in the room, until Frances, “Oh, my god, you were going to meet her on 9-11.”

“Well, yeah, she was in a hotel near Ground Zero, but – ”

“You went down there to see her.”

“I wanted to make sure she was okay, but – ”

“You told everybody that you went down there to bring water to the first-responders.”

“Well, ah, that too … but everywhere was out of water, so …”

With that the therapist, who has never uttered a word through all the sessions, sighs, “Wow, dude …”

So, we get the other side. Now, the whole ‘let’s get divorced’ scenario makes sense. A lot of sense, really.

It also sums up a lot about what my office does on a daily basis – figure it all out before fixing anything.

Francis and Robert are on track to work it out through mediation, we’ll be checking back in a few episodes from now.

About Lucy Langhanke and the Custody Fight of the Century

Lucy Langhanke – you’d have to be into movies in a pretty unhealthily obsessive way to know that that’s the real name of the great ’30’s- ’40’s actress Mary Astor. Mary Astor is best remembered for a handful of things – playing Brigid O’Shaughnessy in The Maltese Falcon, winning an Academy award for The Great Lie, and being involved in one of the most scandalous child custody fights in Hollywood history (I’ll note that Brad-Angelina war has only just been declared).

Mary Astor’s custody fight happened in the mid-1930’s, in the middle of the Depression and with Hollywood perhaps at its height. On the surface, it seems to have nothing in common with divorce and custody hearings today. But here the surface is just that.

The facts are these: Mary Astor married Dr. Franklyn Thorpe in June, 1931. They had a child, Marilyn, in June 1932. In late 1933, Mary, unhappy in the marriage and in her career, went to New York to work on the stage. She had an affair (torrid was the mildest word used in the tabloids of the day) with the playwright and Broadway directer, George S. Kaufman, a founding member of the Algonquin Round Table. Mary, an excellent writer (she would go on to write two bestselling memoirs and five novels), kept a well-written, fairly detailed diary.

Back in Hollywood in late 1935, Mary went back to work. In 1936 Dr. Thorpe obtained an uncontested divorce. Then he found the diary. Then he demanded custody. Then it went to trial. Then it got ugly.

The one thing to immediately take from this in the age of litigation and the Internet is pretty clear: you can hide a diary, most people probably a little bit better than Mary Astor, but you can’t hide your social media. Enough said, that’s not where I’m really going with this.

Dr. Thorpe claimed that Mary was an unfit mother because she had affairs. Well, probably not so much that as the fact she wrote about them and he did not do well in any of her comparisons – and she compared a lot  Nevertheless, it didn’t look good for Mary – in civil court or the court of public opinion. Absent a good attorney, in 1936, Mary’s prognosis was bleak.

But, several things happened in short order. Mary retained an attorney almost as famous as her, George Simon Kaufman. He had the diary thrown out, made inadmissible. The fact that Thorpe had shared it with the gossip columnist for The New York Daily News and they added their own entries and changed others probably had a lot to do with that decision.

Perhaps just as important, Kaufman laid out all the facts. Facts like these: back when Mary was Lucy she had the stage parents from hell. She made her screen debut at 14, was under contract to a studio for $500/wk (that’s $7,000 in today’s dollars) and was basically imprisoned at home. Her parents, to be kind, never let her out of their sight. She was alloted a $5/week allowance, although, of course, she had no place to spend it. Her father, meanwhile, was physically abusive and constantly demeaned her performances.

Mary managed to. literally, escape – she fled the mansion her parents bought with her money through a carelessly left-open third floor window. At the time, 1928, she was earning $3750/wk ($53,000 … a week). She married a director in 1929, but her parents still kept a tight reign on the money. By the time she gained control of her finances in 1932 there was so little money left she had to ask for assistance from the Screen Actors guild. Her parents promptly sued her for support.

Mary’s husband, Kenneth Hawks – brother of the great director Howard Hawks – was killed in a plane crash in 1930. It was devastating. Mary had a nervous breakdown, took a leave of absence from her studio, and signed herself into inpatient treatment.  By now you can guess who her doctor was – Thorpe.

No one will know if Thorpe ever loved his wife, but there are piles of evidence that he loved her money. Immediately after the wedding he bought a yacht and opened his own practice.

All this, obviously, filled in all the blanks in the case. It was enough for the judge – he awarded Mary full custody. Probably not coincidentally, her career took off. The diary disappeared sometime during the trial. It was like the Loch Ness monster of Hollywood for years, sightings were rare but hyped. In 1953, it was discovered in a safety deposit box and, by court order, it was burned.

There are, obviously, a lot of lessons here. Perhaps the most important one is this – facts are just facts until someone puts them into a narrative.

 

 

What I Do, Part 29

Ever have a conversation like this:

Of course you have. We all have. When it’s a private conversation or a couple of minutes of a fake documentary for a fake heavy metal band it can be amusing or a bit frustrating, not much more. Incomprehensible logic is funny when it’s Christopher Guest and Rob Reiner and it’s for entertainment, not so much everywhere else.

Where this particular thinking gets a whole lot less fun is when it matters. In an important conversation with a spouse, employer, employee, lawyer, judge, mediator, this kind of logic only engenders frustration… or anger … or a combination of the two.

The problem is this: the chances of running into someone who employs Nigel’s brand of logic dramatically increasesspinaltap-11 when you wander into a legal matter. Divorce, custody, adoption, most certainly criminal, you are confronted by people who have established ideas, thoughts, and ways of thinking that are pedantic at best.

Usually, it’s nobody’s fault, it’s just … there. Sometimes it’s the product of years of doing and explaining things the exact same way over and over again for years; sometimes (to paraphrase Joseph Heller) it’s what happens when
mediocre people are elevated to positions of authority; and mostly, it’s because the person you’re patiently trying to explain things to has a viewpoint or interest directly opposed to yours.

You can not go into something as life-altering important as divorce or custody or adoption alone, you need someone used to the system and ridiculous logic who keeps her head about her while holding your interests above all.

That’s what I do.

Lessons in Divorce (No. 36)

A client finalized her divorce this week. Seemingly seconds after everything was signed, sealed, and delivered her now ex-husband demanded she ‘get in touch’ with me and get ‘some changes made.’ Out of habit, and in sheer disregard at what had just occurred, she almost did it until, with a little prompting from me, she realized she was under no compunction whatever to do … well, anything she didn’t feel like doing.

That reminded me of this great line from American Beauty. A perfect post-divorce lesson.