In Episode 6 Carl ropes in local divorce attorney Adam Eisenhut to discuss methods those facing a divorce or retaining a divorce lawyer may utilize to reign in the divorce costs.
Podcast Transcript: Controlling the Cost of a Divorce
INTERVIEW with Adam Eisenhut, Esq.
[0:00:07.7] CT: Hello and welcome to the Carl Taylor Law Divorce and Family Law Podcast, rebranded as Happily Even After. Today, we have a special guest, Mr. Adam Eisenhut, close friend of mine. I’m willing to say, go in the record and saying, Adam, you’re my friend, you’re also one of the best family law attorneys I’ve ever seen in action. You’re a local guy in Flemington, your office is — you want to describe a little bit of where you’re at and your firm?
[0:00:33.1] AE: Well since I’m one of the best attorneys you ever met, now I need to promote this podcast. Thank you. No, I’m a local attorney in Flemington, focused primarily almost exclusively in family law, it’s the focus of my firm and primarily, in Hunterdon County, a little bit in Somerset and Warren, is where my practice area really is and I’m sure very similar to you and I don’t think we’ve had a case against each other yet, which is why we can still say that we’re friends.
[0:00:56.0] CT: Yeah, it’s interesting. We’ve seen a lot of friendships ruined amongst family law attorneys over cases but luckily, we haven’t gotten there yet but maybe soon. Until then, we’ll have our board game nights to destroy our friendships.
So Adam, I think one of the things that people say when they come in is I tend to notice that clients go, “How long is it going to take and how much is it going to cost?”
[0:01:15.8] AE: Yeah.
[0:01:16.4] CT: I think today, it would really be helpful to the six people listening, your parents my parents, and our spouses to kind of go in to how can you keep costs down? Because I think clients kind of underestimate how much their involvement or lack of involvement or their attitude impacts that cost. They kind of tend to believe it’s all up to us or the court system but I think that they’re actually one of the most important elements to the divorce, would you agree with that?
[0:01:40.9] AE: Yeah, I think you know, because I really do get that question, I’m sure you too about how much it’s going to cost, how long it’s going to take and I think that’s ultimately a very fair question but it’s very difficult to answer and I always feel like I’m giving a very unsatisfying response when I say, “We can control about 50% of it but what you, your spouse and their attorneys do was going to dictate the cost to a certain extent.” But you’re absolutely right, that clients can do a lot to keep the cost down and I try to emphasize that, I know you do too in your practice.
[0:02:10.3] CT: I just had a case that ended in 30 days. Client came to me, signed up and 30 days later, they were divorced and then of course we have cases that go two, three years, right? It’s the same attorney so a lot of it really comes down to – I think the emotional piece more than anything else, even complex cases can be resolved pretty quickly if the emotional piece is addressed.
But a lot of times, if you have one of the parties who is not ready to move forward for whatever reason, or they feel guilty or they feel angry, it can kid of hold things up because I think one time you said to me, Adam, two good divorce attorneys could probably go into a room and after about a day or so, after about eight hours workout all the complex financials and everything else and have a fair agreement. So what changes that I think is really the emotion to it, right?
So, what are some of the tips that you would have, and I’ll add in as well, to try and keep cost down?
[0:03:02.8] AE: Well, I think a lot of cases that spiral out of control usually have custody as an issue and that’s difficult I think for the attorneys because we’re guided so much by what our clients, the parents are saying. Nobody wants to be the attorney to say, “Don’t spend the time with your kids that you think is appropriate,” or especially if a client is saying the other parent is unfit or there’s a safety issue.
Attorneys are always, and I know I am very reluctant to question that because we’re not there and we don’t want to put kids in a dangerous situation. So parents, I think, are in a unique position to resolve what could be the most difficult portion of their case themselves. I see a lot of people come in and say, “We’ve already talked about custody, we hash it out at the dining room table, we have a plan. Help, fill in some gaps or answer some questions but we fundamentally have an agreement as to what it should look like generally about what school district the kids should be in, where the kid’s going to live primarily, something to build off of,” and it takes what could be a very difficult and expensive issue and it makes it very easy. I think that’s, quite honestly parents are in the best position, not the attorneys, to make that decision. Now, I don’t think the courts either have the same understanding of the family dynamic that the parents themselves do.
[0:04:18.5] CT: You know what surprises me as a parent, Adam?
[0:04:21.0] AE: I don’t have kids so I don’t get a vote, so yeah.
[0:04:22.5] CT: I’m always surprised that I’ve yet to see a case where people come in and go, “I want to negotiate the other side gets more parenting time.” If I ever get divorced, I’m going to be like, “I insist that I get the weekends, or I don’t get the weekends.” Like, “Christie, you can take the weekends I’m going to go and play board games at Adam’s house and so he gets divorced, I’m going to lumber around.” I mean, I’m being somewhat facetious, but everyone wants that extra time and sometimes it’s not genuine, right?
Sometimes it’s a way to keep child support low but really, you know, because you and I are pretty much the same, we’ve been doing this about 10 or more years, right? I’ve seen a big change, I’m sure you have too Adam where when we first started, it was like, “Okay, if you’re the dad, you’re going to get alternate weekends and maybe Wednesday night dinner and that’s that.” Although the law was gender neutral, it was really not really at that time when I first started 10 years ago, it was rare to see a father get 50/50 parenting time. I think what a lot of the judges are now saying is, in a more informal and formal way, is, “Hey, it’s 50/50 and tell us why we should come off of that.”
[0:05:22.0] AE: Yeah, I think it’s interesting because I think the fundamental case law on it, which is decades old now hasn’t changed but there has been a cultural shift and I think you do see more involved fathers, you see fathers who are more willing to fight for custody and I think to a certain extent –
[0:05:37.6] CT: Unlike me. This is all a joke if it should come to pass, this is not evidentiary, I don’t think.
[0:05:45.1] AE: Fortunately, your family probably is not listening to this podcast, so you’re safe.
[0:05:48.9] CT: Sorry, go ahead.
[0:05:49.7] AE: I think that the households where one parent has stayed at home with the kids is more rare than it used to be just based on the economics of today’s society where there’s a lot of just working families where everyone is working and I think that’s pushed the change towards a more 50/50 centric idea. It’s not appropriate for every case but I think that it is much more appropriate than it used to be.
Yeah, I think it’s interesting, you know? Family law, it’s kind of like one of those things where you kind of evolve with the times where, you know, I was a law clerk during the great recession and there was this discussion of, hey, you know, to modify child support alimony, it used to be really onerous, it would take years of permanent substantial change in circumstances but during that time period it’s like, “Hey, look, everyone’s out at work, it’s the great recession, maybe six months being out of work is enough to modify child support alimony.” Now I think it’s probably kind of lengthening again now that the economy’s a little bit stronger at least in terms of employment numbers.
[0:06:42.7] CT: You realize you sound like you’re 110 years old. When I was a law clerk in the great recession.
[0:06:49.9] AE: We had to go and cut down our own trees to stay warm.
[0:06:52.3] CT: Calculate child support by hand, both ways.
[0:06:54.9] AE: You don’t’ do that?
[0:06:56.3] CT: So I think what we’ve talked about so far to run it down is we talked about how emotion really has a big factor and I can get into that a little bit more. I tend to say to people, don’t be afraid to go to talk to a therapist to go for long runs, to meditate, whatever it is that you need to do to get through the stress because the fact of the matter is most divorce attorneys, we’re not trained in the emotion.
We worked with it all day but we’re not trained in any kind of clinical sense how to address it and that, if you talk to a client for an hour and a half about you know, their feelings about a case, that can be very therapeutic for the client but then when the get the bill they might say, “Wait a minute, maybe it would have been cheaper to talk to my therapist and have – way more effective, right? Talk to me long enough, you might need therapy.
[0:07:39.3] AE: I do think that the problem, the disconnect is that very rarely do both parties in a divorce, are they at the same place in terms of accepting the divorce.
[0:07:49.9] CT: That’s so true.
[0:07:51.1] AE: Usually you get somebody who has been thinking about it, possibly planning it and is finally pulled the trigger and saying, “I want a divorce,” and they’ve processed a lot of the emotion possibly for months and then we have the other partner who sometimes completely blindsided. You’ve got one side who is ready to go, who has made a decision, who wants to get it done as quickly as possible and then you’ve got someone else who maybe just found out for the first time their marriage is ending and all of a sudden, is asked to transition to just a pure economic bottom line analysis of things. It’s really unrealistic I think to expect someone to play catch up that quickly. But of course they’re sort of forced to and if they don’t then they’re going to start incurring more cost like you were saying.
[0:08:30.7] CT: Adam, we should probably talk about some of the mediation and arbitration, some of the other avenues available to people. I think every case, I don’t like to go in with the mindset of this should be a collaborative law case or this should be straight litigation. I think to some extent, every case is different so you kind of have to listen at the initial consult to see some of these keywords like is it fit for mediation or is the kind of case where maybe I’ll just draft a marital settlement agreement and send it to the other side and we don’t even need a mediator because they’re pretty far along.
What are some of the methods available if you don’t mind diving into that?
[0:09:02.3] AE: Sure, I have the clerical training and I do mediation and I believe in both of those things and so I try to push that when I meet clients and so I sort of come to the approach, a little differently than what you said. I kind of come to the approach of can we shoehorn it into mediation or collaborative divorce.
You need everyone to sign off on that and so if the other side is unwilling to do it that way then you know, you got a litigate as every family law attorney knows, 90 something percent of cases settle at some point even when you’re litigating. So you’re always trying to settle the case and you’re always trying, it’s always the cheapest and most cost effective way to do anything. But if I can get a case into mediation or the [inaudible] process early, I generally think that it’s a cost savings and you’re generally focused on the steps you need to take to settle the case as opposed to jumping through the hoops for court filings and meeting court dates. Which are important in some cases but other times not so relevant.
[0:09:56.7] CT: You know, another thing that when you start to, let’s say mediation fails, you get to the point where you’re really concerned, your concern is getting discovery and do you need experts and that’s really where cases could get very expensive, you know? Do you need a forensic accountant and they’re going to make divorce lawyers look inexpensive by comparison.
I find it difficult personally when you have a client and says, “I think I understand the finances and I have everything I need,” and it’s like, well maybe you do or maybe you don’t, but at what point is it cost effective to pursue through more discovery. It’s very tactic first, there’s a lot of tactics in divorce. Like you’re not quite sure what’s going to work, you just kind of hope to get to the point where maybe it will work, you know? Then you hope you don’t miss an asset, I mean, it’s very – it’s kind of difficult you know?
[0:10:41.2] AE: You’re describing malpractice.
[0:10:44.8] CT: When a client goes, “All right, enough is enough, I don’t want to go any further, I understand all the assets, I don’t want to do formal discovery,” and it’s like that’s like going to save you money and that’s great but at the same time, if you’ve missed an asset class, that can be very expensive.
[0:10:56.4] AE: Yeah, I think there is obviously more sophisticated litigants who are more familiar with their own finances and those cases are easier and less expensive because the due diligence is easier to do. When you have someone who truly says, “I don’t know what my spouse’s business is worth, I don’t know what assets they have or I think that they’ve been moving money around,” it becomes much harder to settle the case with at least with the certainty that you’ve covered all your bases and at that point it’s the client decision as to how much discovery to engage in and what makes sense from a cost benefit analysis. Like you said, every single case is different in that perspective.
[0:11:32.9] CT: What’s your philosophy on who takes to lead in a divorce action? Because I tend to say to clients, “Look, I’m a guide. At the end of the day, it’s your journey, you’re walking through the woods. I’ve walked through these woods before, I kind of know where things are but ultimately, I’m not going to force the decision because you have to live with this marital settlement agreement or the result of litigation or wherever it might be for the rest of your life. Whereas this is one case of many for me.” Not that I don’t care but I think, you know, I try to get to let people have the understanding of, to some extent, “You drive the bus but I’m here in the passenger seat trying to help you make sure you don’t go off the rails kind of thing.”
I find it’s a little bit of a, some clients want you to hold their hand more, some clients are happy being in control and there’s obviously a lot in between. But how do you address those issues in your practice?
[0:12:15.3] AE: You know, I think it depends on the client and that doesn’t sound like a very satisfying response but –
[0:12:19.5] CT: How much will this cost? How long will it take? Well, it depends.
[0:12:23.8] AE: I think there’s just a big difference because I have clients who they come in and they say, “Explain to me what you think is fair and then I will make a decision based on that.” I have other clients who say, “I am completely relying on you, my attorney, to tell me if I should do this or this,” and when there’s – I have a case right now where there’s some complex legal issues where it’s one of those rare cases where it’s in a legal grey area, which is always, it might be interesting for the attorneys but that always means it’s expensive for the clients so I say, theoretically, a court could say this, the law’s unclear on this point, you could litigate and get this outcome or we could litigate and get a very different outcome and so there’s potentially enormous costs involved and a compromise is difficult to reach.
But I generally send, say a compromise is probably the better solution. But I can’t force them to make it, I can just explain the costs and explain what I think is going to happen and that’s generally what I do is I try to save risk, reward, cost benefit analysis but there are absolutely clients who just say, “What would you do?” and I try to give my honest answer if I was in their shoes but generally, I’m obviously more comfortable when they’re making those decisions for themselves.
[0:13:32.7] CT: Right, you know, one of the things because your background, I think you’ve always done pretty much nothing but family law, right?
[0:13:37.6] AE: I’m a one trick pony.
[0:13:39.1] CT: Whereas my career has been a little more varied and I’ve done work for government entities or insurance companies and, you know, when you sit an adjuster, it’s very different than sitting with somebody going through a divorce because the adjuster says, “What are the odds of this working, you know?” “Well, we’ve got 60% chance of winning this motion or whatever.” “How much is it going to cost for your counsel fees?” Then they have some kind of algorithm that decides whether you file the motion or not. It’s very kind of detached and I like that to some extent.
I think family law could have more of that because you see people spending sometimes thousands of dollars to fight over like an old carpet or something that’s not worth anything. I don’t think, you know, the kind of attorneys that we really know would encourage that behavior. We certainly, I know you and I or at least I am, and I’m sure you try to stop that behavior. Like, “You’re fighting over something that doesn’t make sense, you’re wasting money.” But sometimes I think the emotional piece gets added in to the litigation and kind of creates like a toxic stew where it’s kind of hard to view it as dispassionately as you would like.
[0:14:37.2] AE: Yeah, and I think that is sort of the rule of the attorney is to sort of be, if nothing else, just a filter and to – I tell my clients, “I will take the position you want me to take, I will fight for what you want me to fight for but when it’s just me and you talking, I’m going to tell you if what you’re asking for is unreasonable. I’m going to tell you if what you’re asking for is something a court’s not going to grant you or if an argument you want me to make is not going to be cost effective.”
Unless it’s something completely crazy or unethical, I will make those arguments if I am asked to when someone says, “This is important to me,” I’ll do it. But I think a large part of our role is to try to dissuade clients from doing that and I think I know you to that. A lot of good attorneys do that and I think one of the problems is when you have attorneys who have no interest in doing that and just want to stoke those fires and prey upon the emotional component that you were discussing and just generate more problems for an already distressed family.
[0:15:34.8] CT: Yeah, you know, you draw an opposing council or even worst, if you have somebody on the other side who is very stubborn and doesn’t have an attorney, that is one of the variables that can really make a divorce kind of really last a lot longer than it should and a lot of times the results aren’t really any different than they would be settling. But the cost going into a achieving those results are very high and obviously part of our job is to help control the situation as best as we can, neutralize opposing council if they’re taking some of these tactics but you know, it is very frustrating sometimes when you see a case becoming more expensive than it should and you get the sense that maybe the other side and/or their attorney for whatever reason are like you said, stoking the fires and making mountains out of mole hills, so to speak.
So that is one of those reasons why it is hard to say to a client how much it’s going to cost when they come in. Because at that moment you generally don’t know who the opposing council is, you don’t know the attitude of — you can size up your own client pretty quickly. The more you do it, the more you get a sense for what they want and who they are but you don’t know who they’re married to and a lot of decisions come down to, “Well, what do you think we should do?” and it is like, “Well I don’t know your husband” or “I don’t know your wife, you do. How are they going to react to this? Is this going to be somebody that is going to move this forward or are they going to take umbrage at this and it is going to set the case back if we file this kind of motion or if we take this kind of tactic?”
[0:16:50.5] AE: You know, I think that is always the balancing act because there’s absolutely positions you could take and applications you could file with the court that might advance the short term interests, but it might push back in ultimate settlement and so there is a lot of strategy in terms of managing. If you know you are going to trial for example, it is unfortunate but it happens in some cases, you are much more free to look for their short term gains.
But otherwise, I am usually counseling my clients saying, “Don’t send that angry letter, don’t file that is going to embarrass the other side unnecessarily.” Because at the end of the day, we want to sit across the table with them and we want them to agree to something that you are going to find favorable and if they’re just upset that doesn’t lead to a productive conversation and so ideally, you want to just stick to the facts, move things forward as quickly as possible.
And you know our business model I think is the same for you is we rely on word of mouth. So I want to get someone out of the divorce process as quickly and inexpensively as possible and you know, hopefully they refer other people going through something similar to me saying, “I didn’t spend a fortune and I got a fair deal.” So I don’t need a case to be prolonged and protracted and awful. That is not good for my mental health and it’s not how my business model works in terms of generating fees for myself so.
[0:18:11.1] CT: I think there’s – and we’ll wrap it up I guess in a couple of minutes Adam, but there are some clients who come in and it’s like, “Can you be a real bastard? I need a real bastard,” and they tend not to hire me because they realize I am a bastard but not in the way they want, you know? So some clients I think going in and this is speaking to there’s no one listening at this point but if you were hypothetically, you know, when we talk about the emotion and selecting an attorney and having the thought process of, “Hey maybe I am not going to go into here and try to create damage or harm other people,” and you mentioned before we started recording today Adam, the idea of a knife fight, right? And the old joke about a knife fight is the winner leaves in an ambulance and the loser leaves in a body bag, right?
So you don’t want to get these knife fight type situations. But how do you deal — I find it very hard to deal with those types of clients who sometimes at the end they might say, “Oh, you know what? You’re pretty level headed and that was a good thing ultimately. I was wrong.” But some clients really do want to go in and create chaos because I understand, they’re just so frustrated or they are so upset or they found their spouse is having an affair and they’re afraid. A lot of them comes to fear, they are afraid they’ll lose all their money, or their children. I try not to say to people that, “Maybe you should hire another lawyer.” But there is a lot of lawyers who build themselves as, “I am the pit bull, I am the shark.” So sometimes it is not a good fit as I spiral and just talking in a circle, I’m sorry.
[0:19:33.9] AE: I usually tell clients that they need to really think about what their priorities are and if their priorities are having a good relationship with their children and coming out of the divorce financially intact, I try to keep everyone focused on that. Because, especially when there is children, brutal unrelenting litigation between parents always bleeds over and I think both parents relationships with their children suffer and at the end of the day, ideally you want to have some savings left and you want to be able to put your children through college and I think if everyone stays focused on that, it is much easier.
So I try to redirect the situation, whether it’s my client or the other side, when I see someone making arguments or doing things that’s just going to waste money, I try to always keep focused on those things, which generally works but every now and then you run into someone who is just trying to destroy your client and you need to be aggressive and fight back. But very rarely can people afford to do that and so you always try to go back to the cost benefit analysis and I know that’s how we both practice.
[0:20:40.9] CT: Well Adam, thank you for coming onto the podcast. I know it is going to be a great boom to your career so you should probably be thanking me but.
[0:20:47.6] AE: Exactly. To our five listeners, I hope you enjoyed this.
[0:20:51.1] CT: Take care and have a good day and Adam, what is your firm’s website if people want to check you out?
[0:20:56.5] AE: It’s mezlawyers.com.
[0:21:00.7] CT: Okay, we’ll sign off. Take care.