Author Archives: Sabrina Grogan

How much compromise in divorce is necessary to be “cooperative”?

This is a question that anyone going through a divorce might have when deciding whether to try cooperative law. Why would your divorced friends be telling you that you need a bulldog attorney if the cooperative approach is better? How much are you going to have to “give away” to settle your case?

The Charleston Cooperative Family Law Association (CCFLA) is a group of lawyers who believe that a cooperative approach is better for families and individuals going through divorce. This does not mean that attorneys stop being zealous advocates on behalf of their clients who are separating or divorcing. Advocacy is at the very heart of what it means to be an attorney. But advocacy does not need to be blind to reality. And the reality is that many people cannot afford the investment of time, money and emotion that divorce litigation requires. For them, it is clear that compromise is required to resolve their case. The question then becomes, if compromise is a given, how much is too much?

Of course, every party to a divorce has the option of simply giving the other side everything they want. That will likely settle the case very quickly with little litigation or attorney costs. The downsides of this approach are pretty plain. One party could be left with very little in the way of property division, support, or custody. Because many aspects of marital settlements in the Family Court cannot be modified in the future unless both parties’ consent, or can only be modified with difficulty and great expense, these agreements are hard to change. Further, agreeing to an unfair settlement demand is not guaranteed to lead to peace. An unreasonable spouse may continue to be unreasonable, regardless of the terms of the divorce.

On the other hand, refusing settlement offers that fall within a range of reasonableness is counterproductive as well. If your attorney recommends a settlement offer, it is likely because he or she believes it is within a range of what you can expect to receive in family court, given the known, provable facts and South Carolina family law as it currently exists. If a settlement offer falls within these parameters, it is a “fair” offer regardless of whether it feels fair to you given what took place during the marriage. For example, it is legally “fair” for a spouse who wasted money throughout the marriage to receive one-half of the savings the other spouse responsibly squirreled away for the future. It is legally “fair” for a parent who has never spent the evening alone with a child to have regular scheduled overnight visitation. It is legally “fair” to have to alternate Christmas Day from year-to-year with an ex who has never really cared about celebrating Christmas. So, depending on the precise facts, it is very possible that refusing to settle these issues is not in your best interest in the long run.

Where is the dividing line? When is compromise in divorce negotiations reasonable? When have you compromised too much? It should come as no surprise that there is no clear answer to these questions. Many family court cases have been litigated over one overnight visit per month. This does not seem to make sense from an objective standpoint. Why spend thousands of dollars to litigate the issue of one overnight? Of course, by the time the parties have gotten to that point, they probably both have “given up” a lot when it comes to visitation, inching toward a middle ground. To be asked to compromise even a little bit more can seem like absolute surrender. These are tough choices, but with a clear-eyed view of the facts of each case and the state of South Carolina Family Law that governs these decisions, along with a healthy dose of appreciation for the costs (emotional and financial) of litigation, fair compromise is not just possible, it is probable.

The Charleston Cooperative Family Law Association exists to help people going through separation or divorce in South Carolina Family Court to achieve Marital Settlement Agreements (or Modification Agreements) that work for them, now and into the future.

Here is an example of Family Law in Practice where Cooperative Principles are applied to a Real Life Divorce. Mr. and Ms. Johnson are divorced. They have a 2017 Order approving their marital settlement agreement, including provisions relating to recalculation of child support for their two minor children, one of whom has special needs. Specifically, the Order states that either party can, at any time, request “tax returns, W-2s and 1099s” from the other party, and then request mediation if the parties can’t agree on a new child support amount. The current support amount under the Order is $500.00 per month; however, Mr. Johnson has been paying $1,000 per month voluntarily. Still, Ms. Johnson regularly asks Mr. Johnson for additional monies for child-related expenses, like extracurricular activities. In addition, she takes their special needs child to a children’s hospital in North Carolina, twice annually, and she incurs transportation, lodging, and other incidental expenses relating to these trips. She wants Mr. Johnson to contribute to these child support costs. Mr. Johnson complains that Ms. Johnson is “nickel and diming” him.

Ms. Johnson has now requested income information from her former husband by email, and Mr. Johnson has not responded. Ms. Johnson has hired a lawyer, and her primary concern is that Mr. Johnson will revert to the Order’s provision, reducing her monthly amount from $1,000 to $500. At the same time, she believes Mr. Johnson’s income has increased substantially.

Question: What can the Cooperative Law process do for Ms. Johnson and for Mr. Johnson?

Answer: This is a very common situation that causes a lot of stress for both parties. Each party is feeling tremendous financial uncertainty and pressure. Ms. Johnson feels that $1,000 per month is not enough to contribute to the never-ending list of child support needs. Mr. Johnson feels that he is already going above and beyond what the law requires of him. Both parents feel they can never get ahead financially. Each feels that the other is thinking of their own needs or wants, not the needs of the children.

There are practical problems here too. For example, when child support is modified it is generally only modified from the date the modification case is filed. The change is not applied retroactively. Therefore, if Mr. Johnson received a raise in January of 2021 that would increase his child support, and Ms. Johnson found about it in February, but did not take action to file a case until November, she could lose out on several months of increased child support.

Also, Mr. Johnson is not required to pay $1,000.00 per month, only $500.00. If he gets upset with his former wife for trying to get more child support, he could simply go back to paying the lower amount. And perhaps a current child support calculation by a judge would keep his obligation at the lower amount, or maybe it would go up a little, but not to $1,000.00 per month. Ms. Johnson runs the risk of going to Court and ending up with less than what she is getting now.

If the Johnsons choose to use the Cooperative Law process, this tension-filled situation could potentially be worked out amicably without litigation. Cooperative Law principles provide that both parties agree to voluntarily exchange relevant financial information. In a child support case, this typically means current income information for each parent, proof of health insurance costs for the child or children, and proof of the cost of work-related daycare. For a special needs child, it can also include proof of extraordinary medical expenses. Even though both the Johnson’s are under a court order to exchange some of this information, when it is exchanged voluntarily, and both parties’ lawyers ensure that only truthful, accurate, and relevant information is used, the process is streamlined and stress is decreased.

Cooperative Law principals permit Ms. Johnson to file a family court case to preserve her rights to a retroactive increase in child support, so long as she lets the cooperative process play out prior to requesting a hearing. So she can preserve what rights she may have, while still trying to settle the issues cooperatively.

Mr. Johnson will have the advantage of not having to prepare for a child support hearing in as little as five business days (as would happen in a traditional litigation mode), but rather to participate in a process where his concerns can be heard. His lawyer will likely encourage him to continue to pay the $1,000.00 per month he has voluntarily been paying in order to preserve goodwill, but also because his prior voluntary payments of this amount are some indication that he knows the money is really needed and he can afford to pay it.

In a Cooperative Law environment, both parties can review what the law says the child support should be, and make adjustments based on what they know about their children’s needs and their own financial situations. There is a “happy medium” between Mr. Johnson being constantly subjected to requests for more money and Ms. Johnson feeling overwhelmed each month by the needs of the children. Perhaps this means setting a new, higher, amount of support, with no additional requests for things like extracurricular activities. Perhaps it means keeping the child support at $1,000.00 per month, with a cap on any additional request for funds. There are any number of ways to handle these issues, but approaching them cooperatively can lead to a much smoother resolution than litigation ever would.

Can there be a different approach to divorce? There are many divorce lawyers in the family court that will tell you they always try to work out an amicable divorce settlement. And many do. There are many family lawyers in the family court that will tell you they fight tooth and nail with the sole goal of getting the maximum result for their clients. And many do. Which approach is better? Which is better for you?

According to the Centers for Disease Control, the divorce rate in the United States is 2.9 per 1,000 people. That figure includes 45 reporting States and the District of Columbia. The marriage rate is 6.5 per 1,000. That puts the divorce rate at 44.6%, less that the “more than half” figure that is generally used to describe the divorce rate. Nevertheless, there were 782,038 divorces in the reporting States and DC in 2018. That is still a large number. The divorce rate for South Carolina was 2.5 per 1000 in 2018 and 3.8 per 1000 in 2000. In percentage terms, the divorce rate in 2000 was 35.8% while the current rate (2018) is 37.8%.

What goes beyond these statistics; however, is the indisputable fact that divorce is a tremendous upheaval for wives, husbands and children. Lives are affected from the smallest details (“I’m under a court order to not use profanity in front of my kids?”) to the largest (“I have to give my spouse half the retirement that I have spent a lifetime working to build? ”) There are tremendous challenges and very few rewards, other than perhaps getting out of an unhappy relationship.

The Charleston Cooperative Family Law Association is made up of experienced family law attorneys committed to helping you find a path through the maze of decisions you will have to face as you navigate your divorce. We are committed to principles of cooperation. That is not to say your divorce will suddenly become easy, or simple. What it means is that relevant information such as bank account statements will be shared without the need for court involvement. Children’s needs will be put first. Lawyers will pick up the phone and talk to one another rather than file motions. And you will use your best efforts to reach a mutually agreeable settlement, using the courts as a last resort or in a genuine emergency.

There are no statistics on how many of the married people who divorced in South Carolina in 2018 wish they had tried harder to settle their case. There are no statistics regarding how many wish they could get the lawyer’s fees, Guardian ad litem fees and other costs back into their bank account. There are no statistics on how many would turn back the clock, go back to the negotiating table and get the job done at the very first opportunity. However, that chance is yours now and the Charleston Cooperative Family Law Association is committed to helping you.

What Would You Do?

A Cooperative Approach to Divorce looks to provide a socially, morally and ethically acceptable path through a difficult situation. Journalist John Quinones, in his popular television show on ABC, “What Would You Do?,” asks his viewers to ponder what they would do when confronted with an ethical, social or moral dilemma. If you found a wallet with no identification but $1,000 cash, would you try to find out who owned it? Would you take it to the police? Give the money to charity? Or would you pocket the cash (and maybe donate 10% to ease the moral sting)? The show challenges us to be brutally honest about how we would react when faced with these dilemmas. The upside of this is that the people being filmed, who don’t know they are on a television show, very often make the “right” choice.

Spouses going through divorce are faced every day with moral quandaries and have to decide whether to make the “right” choice. Often this means acting in a way contrary to their feelings, opinions and even their own best interests. After all, what is morally wrong about telling your children that their mother is committing adultery? It’s true, isn’t it? Mom made that choice and the kids deserve to know the truth. What is wrong with telling your son you can’t afford karate lessons because his father hasn’t paid child support? It’s true, isn’t it? Dad can afford it; he is just trying to hurt Mom by withholding the payments.

And yet you are being told that no, you really shouldn’t say these things. And if you choose to handle your case using a Cooperative Approach to Divorce, your lawyer will reiterate this message again and again.* There are several reasons for this, which you probably already know instinctively. Young children in particular idolize their parents and this illusion of parental perfection is important to their sense of well-being and security. A lying parent, a cheating parent, cannot protect them from “bad guys” and bogeymen. They will learn soon enough that their parents are only human with human flaws. Why take this illusion of superhero mom or superhero dad away from them prematurely?

If a child feels that one parent needs their protection because the other parent is harming that parent, this could lead to not wanting to visit with or even communicate with the other parent. Being alienated from a parent is a terrible thing for a child. It is misery for everyone, except perhaps for the parent who has “won.”

Children need to be free to be children. This includes teenagers. They know nothing of the laws regarding custody, visitation, and child support, nor should they. They are not your friends or confidantes, at least when it comes to your divorce from their father or mother. Let them focus on school, extracurricular and social activities. They are already experiencing their own divorce – they don’t need to experience yours as well.

And of course, the “truth” is a tricky thing. If asked about her adultery, Mom might say that she has been in a bad marriage for years, she has been verbally and emotionally abused, that she begged her husband to attend marriage counseling but was told “I don’t need counseling. There’s nothing wrong with me.” And she finally met and was -understandably- attracted to someone who showed her kindness, love and respect. That’s her truth, or at least what she claims. Who knows? And how are the children of the marriage supposed to know or be able to sift through the conflicting “truths” of their parents?

When you engage in a Cooperative process, you and your spouse commit to leaving the children out of the conflict to the greatest extent you possibly can. This is IN SPITE OF the fact that perhaps your spouse has cheated, or failed to pay support. Divorces where the parties are friendly and do the right thing all the time are rare, and easy. Cooperative law principles apply, but aren’t most needed, where the parties are already cooperating. A Cooperative Approach to Divorce is most urgently needed for flawed humans whose marriage is ending and who sometimes do mean-spirited, foolish things, but who still realize that they, and their families, are better off reaching an amicable resolution of the difficult issues they are facing. They see the two roads, and decide to take the higher (and smoother) one, together.

What would you do?

*This article does not apply to situations of domestic abuse.