We asked six prominent family law attorneys known for their expertise in handling high-stakes divorce to share some of their best advice with our readers.
The following are excerpts from in-depth interviews, which are available as podcasts and transcripts here.
Stephen A. Kolodny, Managing Partner, Kolodny Law Group, Beverly Hills CA
Mr. Kolodny is a preeminent family lawyer who has represented extremely-high-stakes divorce clients over his almost 50-year career. He is the Co-Chair of the National Family Law Trial Institute, which has trained more than a thousand family lawyers. www.kolodnylawgroup.com
What are the risks of taking on high-stakes divorce cases, and how do you mitigate those risks?
I was hired a couple of years ago to assist in a malpractice case against a lawyer for settling a case in litigation – a settlement the wife didn’t like for various reasons. The stakes were astronomically high: $110 million. We were able to get a defence verdict or award on each and every point the wife raised. Family law attorneys understand what it takes to try a case to conclusion in a family law court, and what the weaknesses of those cases are. Providing for mandatory arbitration can also help to mitigate the risk. Almost everyone in Los Angeles has modified their arbitration agreements to require the arbitrator to follow the state’s evidence code and case law – which means the arbitrator can’t make a willy-nilly decision because they feel sorry for someone. Of course, malpractice insurance is necessary – but in some cases involving hundreds of millions of dollars, there simply isn’t enough insurance.
What options have you suggested in creating settlement agreements that are unique to high-asset or complex child-custody cases?
Your organization alerted me to a company providing disability insurance for the support payments in the event that the payor becomes disabled in the future. We had been using life insurance to replace the support obligations that would be lost in the event of death for many years, but the disability insurance is a fabulous idea.
Several years ago, I created the concept of putting together an annuity with bonuses along the way for not filing modification proceedings in paternity cases where one party didn’t want to have contact with the mother of their non-marital child. The mother would receive extra payments periodically every few years as an incentive not to modify, which would run up legal fees and risk public exposure of their non-marital child.
Another idea was to reduce rather than eliminate alimony payments in the event that the supported spouse remarried. Reducing the support by 50% for the first couple of years after remarriage, and then reducing it down to 25% before finally terminating encouraged the recipient spouse to get married, and significantly reduced the payor’s support obligation. Those are the kinds of ideas we’ve come up with over the years that are a little bit out of the box.
One of Illinois’ top-rated divorce attorneys, Ms. Feinberg is a frequent speaker and writer who has received numerous prestigious honors from her peers. She became president of the USA Chapter of the IAML in 2014. She regularly represents individuals with wealth – entrepreneurs, top executives, and affluent families. www.boylefeinbergfamilylaw.com
What personal characteristics and professional experience do you need to be successful at handling high-stakes divorce cases and clients?
You need to have an understanding of human nature, and certainly a very evolved sense of what the law is, and what is possible in the case. You need to understand the real goals of your client – stated or not stated – and be able to create a strategic plan for how to achieve those goals. You must also have a really good understanding of finance and tax issues.
What do you need to bring to the game to win a high-stakes case?
You need to bring the respect that comes from many years spent in the courtroom and from everybody knowing your reputation: that you’re not somebody who’s going to back down easily; that you’re going to make sure you have all the facts; and that you’ll use the best professionals. You need to understand the tax strategies that could bring an added benefit to asset division. Not considering tax consequences can spell disaster.
If you have a reputation for being thorough, honest, and somebody who knows where you’re going in a case at all times, then you are going to be taken seriously, as will your client’s case. If you end up in the judicial system as opposed to private mediation, the judges treat the high-end cases much differently than they do the average type of case. They understand that at any given moment they could be in the newspaper, or that the case could go up on appeal – on either temporary issues, or after the trial is over. They’re very cognizant that there’s a lot to be dealt with here, and you’d better bring your very best game. Choosing experts who are competent, intelligent, and qualified to support your case is also extremely important.
Recognized by his peers as one of the leaders of New York’s matrimonial bar, Mr. Abramowitz is a past-president of the AAML, and currently serves on its National Executive Committee. He is also a diplomate of the prestigious American College of Family Trial Lawyers. www.mak-law.com
Do you have strategies for settling high-profile cases to help maintain your clients’ privacy and dignity?
A few years ago, I handled a divorce involving a very well-known movie-star wife and her husband, who was also an actor and a director. In negotiating the settlement, we worked out an agreement that, rather than proceeding to a divorce through the courts in the United States, we would fly one of them down to the Dominican Republic where they would both agree to jurisdiction. The divorce took place within 48 hours, under the radar, with no press involved. Our co-counsel in the Dominican Republic picked the client up at the airport, put him in a very small boutique hotel so that he wouldn’t be seen around town, and took him to the courthouse early in the morning. They were the first case on the docket so there weren’t a lot of people around. As soon as the case was over, they whisked the client back to the airport and he flew back to the United States.
In New York, our matrimonial case files in the courthouse are sealed for 100 years after the judgment of divorce is signed; nobody other than the clients or their counsel can go into the clerk’s office and ask to see the file. We try to make sure that nobody leaks the papers to the press, and we ask clients to be very careful not to talk about any of their relationships or the divorce itself on their social media pages. Anything they say on social media will be turned around on them because the press is looking for negative things to say about high-profile people, since that’s what sells newspapers.
Early on in a case, we will often ask for a confidentiality agreement to try to ensure nothing gets out about the case so the clients can deal with one another on a level playing field without trying to use the leverage of negative publicity to extract an unfair settlement.
Can you tell us about an “outside of the box” option you’ve suggested to settle a high-conflict case?
One of my favorite situations was where my client, the wife, was very, very attached to the golden retriever and insisted that she keep the dog. The husband, on the other hand, was equally insistent that he keep the Hamptons house. The wife was very upset by that, because the dog “loved the beach.” The ultimate creative solution in that case was that the husband agreed that whenever he went out to the house in the Hamptons for the weekend, he would bring the dog along as his guest.
Mr. Kessler has more than 25 years’ experience in family law matters. He has taught at Emory Law School’s Trial Techniques Program and John Marshall Law School, and has lectured for the ABA and the AAML; he has also served as the Chair of the Family Law Section of the ABA. www.ksfamilylaw.com
How do you keep the stress of a high-conflict case from bleeding into your personal life?
That’s a very tough issue. I once did a seminar for law students, and someone asked, “How do we not take the cases home with us? How do we forget about it at the close of a business day?” The answer that came to me was, “You can’t.” If you were going through a divorce, would you want to hire a lawyer that stops at 5:00 p.m.? If clients are going to pay us $700 an hour, then their case should be important to us, and maybe we should take their calls at home. I minimize the stress by sharing the burden and responsibility with others in my office. The work can be stressful, but it’s the price you pay to be in the profession.
Landing a multimillion-dollar client is a dream for many family law attorneys. What do you need to be successful in landing and then handling these kinds of cases?
Be careful what you wish for! High-wealth clients can pay, but representing them is ten times harder. I don’t celebrate when someone gives me a $25,000 retainer; I say, “That’s a lot of responsibility.”
To land high-net-worth cases, you need to do a really good job on every case, and you need to act honorably. Of course, there is a marketing aspect – you have to get the word out and let people know that you exist. What works for me may not work for somebody else. Some people like fishing and they join a fishing club; some people are on boards for charitable organizations; some people enjoy going to sporting events, and others prefer country clubs. The best way to land a new high-net-worth client is to think about how you landed your last one – or to ask other lawyers how they’ve attracted those kinds of clients – and then do that over and over.
However, none of that works unless you’re really comfortable with your job and know what you’re doing. You can get one big client, but if you aren’t competent and it goes badly, word is going to get out. Doing a good job over and over is probably the most important aspect of getting any client – especially a wealthy one.
Mr. Griffin has dedicated his 30-year career to assisting clients through divorce. A Fellow of the AAML and IAML, he has presented at both groups’ annual as well as chapter meetings. www.rutkinoldham.com
What do people with high profiles and substantial assets look for when they’re choosing a divorce lawyer? Is the firm as important as the lawyer?
They are looking for a particular skillset and personality profile: they want an experienced lawyer who understands the complexities of a high-stakes case, can find and organize the information, and then create a successful strategy based on that information.
These clients want a lawyer who speaks their language and can interact with other members of their team – such as an estate-planning team. They particularly want a lawyer who will protect the client’s proprietary and business information as well as their personal and family’s privacy – not only in the case, but also with regard to media interactions.
High-profile clients need their lawyers to be available at odd hours. We really do feel that we’re a 24/7 operation; that’s important to our clients, because frequently they’re world travellers, they’re in different time zones, or they just have work patterns that aren’t traditional.
A high-stakes client needs the right lawyer and firm. They need a lawyer who can manage the particulars, but complex cases often need a team to manage everything that’s at stake. For example, the lawyer needs to be able to assemble a team that might include an excellent business-valuation expert. If it’s a high-stakes custody case, you might need a forensic custody evaluator on your team – someone who can give insights as to what an appropriate parenting plan for children would be.
Finally, we frequently find that a lifestyle analyst – someone who can analyze how the family functioned in the past, and what kind of a settlement is going to be necessary to maintain a certain lifestyle in the future – is an important part of the team.
A Certified Family Law Specialist who has won multiple awards as a family law practitioner, Ms. Phillips is a sought-after commentator, author, philanthropist, and advocate for children and families. She has represented a wide variety of high-profile clients during her more than 30 years of practice. www.phillipslerner.com
What are some of the creative suggestions you’ve made that are unique to high-net-worth cases?
Most of the innovative ideas I have suggested have to do with the divorcing couple’s finances. In one case, one spouse was a prominent and accomplished wealth advisor who agreed to manage the other’s money. In another instance, the husband took all of the couple’s real estate assets and created a REIT, which he then sold. The result was that both parties emerged independently wealthy from the divorce.
What have you learned about the expectations of high-asset divorcing people that has served you well over the years?
My clients often have teams of advisors involved in their lives. These professionals can serve as objective, unemotional advisors who assist in my handling of the case; at other times, they are overly protective of their client (our mutual client), which is not at all productive. Some clients expect to be left alone, which is not to their advantage as I require full access. Some clients expect to call their own shots, which can be detrimental to the case’s outcome. I have found that just because someone is talented in one area doesn’t mean they are talented in all areas. Even sophisticated, high-net-worth individuals can be naïve in matters outside their field, which is why they retain my services in the first place. I have learned to manage unrealistic expectations of all sorts!