Worth: Are there any other new tools our readers should consider?
Spiegel: California child support in a high-income context is crazy. It makes no sense. Our system is based upon a computer formula. Basically, you put in Dad’s income, Mom’s income and how much of the time the kids are with each of them. In the real-world cases it helps, because 99 percent of the time, it kicks out a number that’s not enough. But in the high-income context, you put the numbers in, and they come up with child support numbers that are just—$80,000 a month for child support.
The fight becomes: Is there an opportunity under our statute to opt out of that guideline? And the argument is: Is the person an extraordinarily high earner? And if they’re deemed to be an extraordinary earner, then the guideline doesn’t apply. An extraordinarily high earner in Los Angeles County may be somebody making $3 million a year. In another county, it may be someone making $750,000.
But the new twist is that there’s an effort to say that $80,000 isn’t enough. We want to impute additional income, because Dad has a $9 million art inventory that isn’t generating any money. So we want to say: If it was sold and you invested that money, here’s a return, and impute additional income.
Marvin: I don’t want to be on the end of that one. Whoo.
Spiegel: The pendulum has swung in California in child support. Thirty years ago in paternity cases, Mom and the kids would take a bus across town. Mom would get out, point to the big mansion on the hill and say, "That’s where your father lives." And they’d go back to the other side of town on the bus. Now Mom says, "I want the house next door."

Worth: Do you find there are more men who want custody today than there used to be? And not just as leverage in the situation?
Riesel: I’ve seen more fathers who have a sincere interest in being an active parent. The courts in New York don’t have a presumption of 50-50 the way I believe some states do. I’m seeing more judges recognize that fathers play an active role in the raising of their children. That doesn’t end at divorce.

Worth: Is arbitration a way some people can avoid divorce? Is there more of that going on?
Marvin: Well, you can’t avoid it, you just avoid the necessity of having court intervention. But you still have to, in my state, commence an action, even if you go to arbitration, I’m assuming.
Riesel: There is a movement toward alternate dispute resolution, which is the catchall.

Worth: That involves a psychologist and others.
Riesel: Or the whole panoply of methodologies of avoiding a court. Mediation and something called "collaborative law" that some of us have been involved in. I think the foundation for looking at these alternatives is the recognition that resolution by a court is perhaps the least satisfactory way to resolve a matrimonial dispute.
Schaefer: The thing that’s troublesome about arbitration is, your client says, "Well, I’d like to not have this particular judge hear my case, for a variety of reasons." So you select an arbitrator or three, and when the decision comes down, you’re done. The lawyer’s taking on huge responsibilities.
Spiegel: One of the things that I’m seeing more, and this is an expense-related item, is a scorch-the-earth mentality—people who just don’t care if nothing’s left. Let it all go to the lawyers. That’s when the alternative dispute resolutions and the mediations and all of that, you want to try to use those options, especially in those kinds of situations.
Many times cases get to trial because there’s a good-faith difference of opinion; it feels clean and you have to do it. Most of these cases can and should be resolved. But when you have a scorch-the-earth mentality, it’s impossible.

Worth: How do you advise clients when they feel really wronged?
Riesel: Get over it, essentially. I think we would all agree that cases come in and you look at the assets and the child-related issues and we could, each of us, without our clients, sit down and settle it that afternoon. But that rarely happens because of the emotional issues. Every case has a life of its own; it needs to play itself out a little bit. People need to take swings at one another. They need the opportunity to have their story told, to get the feeling that they’ve had some recompense for the wrongs, the infidelities. That’s human nature.
Marvin: Well, I often say that divorce is the death of a marriage and you have to mourn it.
Schaefer: In an actual death, the spouse didn’t have anything to do with it, typically—unless she pulled the trigger. But typically, if somebody’s spouse dies, there’s a grieving process. With divorce, there’s a lot of failure associated with that. Ego comes into effect.

Worth: You’re always having to navigate that, but at the same time try to get beyond it, to calm clients down.
Schaefer: But you can’t do it in a matter of a couple of days or 30 days or 60 days. Sometimes it takes the better part of a year before somebody’s ready to move on.
Marvin: Some courts put a timetable on it. I don’t think any divorce can be resolved within a specific time frame. They should never force you to go to trial until the time is right. Lawyers know when the time is right.
Riesel: I once was only able to settle a case by getting a judge to agree that he would let the wife get on the witness stand to tell her story. She told it in one sentence that went on for 45 minutes. The court reporter was typing so quickly, I thought her fingers would fall off. This woman could not settle until she had an opportunity to tell the story.
Marvin: One other issue, when you asked if we see things differently. You’re seeing a lot more grandparent issues and a lot more relocation issues now.
Schaefer: There are people who aren’t the primary custodial parents who are relocating, and that creates all kinds of problems with visitation, with the ability to be involved in a child’s daily life. We’re also seeing grandparents’ issues. Grandparents still don’t have rights to vis-à-vis visitation, and it becomes a problem.
Riesel: Living as we are in a global world and representing the people that we do, they have job opportunities all over the world. If they are the custodial parent and they have a legitimate reason for wanting to move to Dubai, that creates painful scenarios that require a real Solomon to try.
Spiegel: Some family law judges describe relocation as the closest thing a family law judge has to the death penalty. There are a lot of people who say, "I don’t need him or her anymore and neither does my kid."
Marvin: Alienation now becomes a very popular thing, which is probably one of the most difficult things to prove to a judge, but it has a horrendous impact on the children.

Photography by Thomas Hart Shelby.

Additional Information
 Legal Land Mines
 Absence of Malice