Client Affairs

After Decker/Dovey: Avoiding A “Scorched Earth” Divorce For Your HNW Clients

Norman Heller and Steven Goldfeder Blank Rome 23 May 2012

After Decker/Dovey: Avoiding A “Scorched Earth” Divorce For Your HNW Clients

Here, Norman Heller and Steven Goldfeder, of the law firm Blank Rome, discuss the critical steps lawyers must take to avoid internecine divorces for their wealthy clients.

Here, Norman Heller and Steven Goldfeder, of the law firm Blank Rome, discuss the critical steps lawyers must take to avoid internecine divorces for their wealthy clients.

It was recently reported that the well-publicized divorce between Susan Decker, the former president of Yahoo, and Michael Dovey, a retired investment banker, was resolved on the eve of trial, after nearly five years of bitter litigation. The case involved battles over custody of the parties’ three children, the division of a marital estate worth in excess of $70 million and included accusations by the spouses of drug use, electronic eavesdropping, marital infidelity and misappropriation of millions of dollars of marital funds. By the time the case was settled, Decker had lost her job as president of Yahoo,  Dovey’s reputation in the investment banking field had taken a pounding and several million dollars in legal fees had been spent on both sides.

So how does one avoid the kind of “scorched earth” divorce suffered by the Dovey/Decker family and how can matrimonial practitioners guide their clients through such a tumultuous period in their lives while keeping their integrity and reputations intact. 

1. Seeing the forest through the trees. The first few meetings between divorce attorney and client are often consumed with the client expressing his or her rage at their spouse’s conduct, whether it be an extramarital affair or the dissipation of marital assets. One client, a top executive who found his wife had been cheating on him, happily vowed that he would much rather litigate away the entirety of his marital estate and see the sums paid to lawyers, before his wife would see one dime. While the urge to simply do the client’s bidding can be tempting, it is often the matrimonial lawyer’s job to protect the clients from themselves. In doing so, a strategy must be formulated where the client’s goals in their divorce are identified early on. Is it to achieve a meaningful access schedule with their young children? To obtain a support package that enables them to duplicate the marital standard of living? To permit the owner of a closely-held business to continue to operate her company with minimal disruption?

The client needs to be focused on an attainable goal and a way to get there without hurling bombs at his or her spouse. The best resolutions to high net worth divorce cases are usually hammered out in attorneys’ offices, without court intervention, after intense negotiations, and avoiding the press. Simply put, the client should be told at the beginning of the process that their goals can be achieved without the mud-slinging press coverage that can only mean problems for the family. The client should be helped to see the forest through the trees.

2. Preaching Civility. If the attorneys are sending daily nasty missives to one another and cannot have a civil discussion or correspondence, there is no doubt that the parties will likewise be at each other’s throats. A settlement will be the furthest thing from anyone’s mind. An attorney does their client a great disservice by failing to maintain a working relationship with their adversary. It is understandable that a client and his or her spouse will be extremely emotional and have difficulty communicating with each other in the midst of a divorce. It is inexcusable, however, for the lawyers to have the same inability to maintain a civil relationship.  Divorcing clients hire an attorney to help them find solutions to their problems, not exacerbate an already difficult situation with an inability to communicate effectively with the attorney on the other side. A professional and respectful tone between counsel will go a long way to avoiding a “scorched earth” divorce.

3. Best Interests of the Children. While this may have become the most overused phrase when referring to divorce and custody, it is particularly important to remind a divorcing client that their actions can have serious negative effects on their children. Do they want their children to do an internet search on their parents one day and find that they each falsely accused the other of drug use, theft, and marital infidelity in documents leaked to the press? Should a child have to go to school and hear from their friends how everyone is talking about their parents’ divorce, which is being reported in newspapers and on the internet on a regular basis? It is important for a child to have a positive image of both parents while growing up. A protracted divorce or a hard-fought custody battle can do serious damage to children if not handled very carefully. It is the attorney’s job to remind the litigants that the manner in which their divorce is litigated can have a serious impact on their children’s welfare. This should be considered at every step of the litigation.     

There is no question that the “scorched earth” divorce is entirely avoidable. It is the attorney’s job to guide their client though the legal morass of divorce with compassion, intelligence and practicality. We all understand the high level of emotions that comes with a divorce. When the client is unable to control their emotions, the attorney should encourage the client to take a step back and make decisions in his or her own best interests and the best interests of the family, without needless attacks on the spouse. Reasonably fair goals are almost always achievable without the mud-slinging seen all too often in the courts.   

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