David Griffin is a partner at Rutkin, Oldham & Griffin, LLC. He has dedicated his 30-year career to assisting clients through divorce, asset distribution, custody, alimony, and support issues arising from complicated compensation structures and high-net-worth families. A Fellow of the AAML and IAML, David has presented at both groups’ annual as well as chapter meetings. www.rutkinoldham.com
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High-Stakes Divorce Q&A With David Griffin
You’re a special master at the Connecticut Regional Family Trial Docket, which to my understanding is a high-conflict custody court established by the State of Connecticut. Can you tell us about the work you do there?
The Regional Family Trial Docket was established by the State of Connecticut to take the worst of the worst custody and high-conflict cases that were not able to resolve themselves in the local judicial districts. Those cases are centralized to a court, which then manages them. The Special Master’s Program at the Regional Family Trial Docket includes a lawyer and a mental health professional who spend time with the parties and their counsel trying to find creative solutions to very difficult custody cases.
I’ve had a lot of success doing the special mastering and I’ve done it for a number of years. What I bring to the table is that I’ve tried cases up there, I understand how the judges think, I understand the setting, and I’m able to communicate to the clients what they’re going to get into if they are not able to settle their case. In other words, they’re asking the State of Connecticut to make the most important decision that will probably ever be made about their family: how their children should be raised going forward. They’re ceding authority by transferring that very important question over to the State of Connecticut. And guess what? The State of Connecticut will never know as much about the family as the family knows about itself.
What ends up happening is the communication difficulty between the spouses, which frequently is the basis of the divorce, bleeds over into an inability to make custody determinations together. The Special Master’s Program is a way for the special masters to impress upon the parents the importance of working together and finding creative solutions.
When I’m a special master, I’m very frank and honestly quite hard on the parents in terms of how they need to conduct themselves and what they’re giving away by not being able to come to an agreement. I haven’t batted a thousand while I’ve been at the Regional Family Trial Docket, but I’ve had a high level of success in getting cases settled because I’m a candid communicator and I’m hard on the clients in terms of what outcomes might happen. I will ask them to reflect on their behavior as it affects their children before allowing a judge to make decisions about them – when the clients know very well they’re the ones who ought to be doing that.
What do people with high profiles and substantial assets at stake look for when they’re choosing a family lawyer? Is the firm as important as the lawyer?
When a high profile individual or a person with substantial assets is selecting a family lawyer, they are looking for a particular skillset and personality profile. They want a lawyer with experience who has a strategic outlook and brings a worldview to the case that is reflected in how the case is managed. The lawyer needs to have the capability to understand the complexities of a high-stakes and high-income case. In other words, how to go about finding all the information, organizing it, and then bringing to bear a strategy based on all of that information for a good outcome.
Clients want a lawyer who has the ability to speak their language, to interact with other members of their team or people who might be in place already, such as an estate-planning team. They particularly want a lawyer who will have a protective sense of the client’s proprietary and business information, as well as a sense of protecting their personal and family’s privacy – not only in the case, but also with regard to media interactions.
Finally, clients of this sort need their lawyers to be available at odd hours. We really do feel that we’re a 24/7 operation. That’s been a great asset for our clients, because frequently they’re world travellers, they’re in different time zones, or they have work patterns that aren’t traditional.
On the question of whether it’s the firm or just a particular lawyer, I have the strong sense that a high-stakes case needs both. While you need a lawyer who can manage the particulars, as I’ve just described, you also have to understand that these complex cases need a team in order to manage everything that’s at stake. For example, you need to be able to assemble a team that includes an excellent business valuation expert with their own team who can organize and gather all the data. If it’s a high-stakes custody case, you need the ability to have a forensic custody evaluator as part of your team and 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 make an analysis of how the family has functioned in the past and what kind of a settlement is going to be necessary in order to maintain a certain lifestyle in the future, is an important part of the team.
What are the special challenges of dealing with an extremely high-net-worth and or high-conflict client? How do you handle those challenges?
There can certainly be challenges when you’re dealing with an extremely high-net-worth or high-conflict client. We have an approach that needs to be individualized to the client, of course, but there are some general strategies brought to bear. I would characterize those as falling within the realm of client management, as well as a frank conversation shaping client expectations about what will happen during the course of the case, and what is a likely outcome at the conclusion of the case. It’s important at the outset to establish what expectations should be in place, to talk about outcomes and goals, and to communicate the notion to the client that they’re part of the team that’s going to help to achieve the result.
Frequently, when you’re dealing with a high-success individual, they are accustomed to getting their own way and directing traffic, so to speak. In our setting, it’s important that the clients understand they’re now in a foreign environment. They aren’t in their comfort zone and they aren’t in an area where their skillset, while it has generated success in their business lives, will necessarily apply in the same way as it has in their business setting.
They need to understand that they’re hiring a lawyer with a law firm that does this for a living, that functions in this area and has a comfort in doing so, and can give them advice about how to conduct themselves both in the court with their soon-to-be ex-wife and with their own lawyers and the staff of the law firm. It’s important in the beginning to establish boundaries with the client in terms of how you can achieve the best productive outcome – which is really the result of careful, respectful communications between the firm and the client.
What are some of the creative options you have suggested or included in a settlement agreement that are unique to such cases?
There are solutions applicable in very high-net-worth cases that wouldn’t be available in a so-called normal or moderately high-asset case. This is because high-net-worth clients have some flexibility in terms of how they can arrange and distribute assets as well as hold business interests for future income generation.
For example, rather than the payment of traditional child support, a client might consider the creation of child support trust. It’s likely that a family of this sort will already have an entire estate plan in place: a mechanism for moving wealth down through generations and handling the income and tax consequences of the estate. A child support trust is one way to do that.
Another creative tool that can be brought to bear is a trust in lieu of alimony, in which a client might place certain income-producing assets. The income of the trust and any increase in the value of the assets would function for the benefit of the ex-spouse, because the assets would have been placed outside of the client’s ownership and within the ownership of the trust. The assets and the increase in value of the assets can be outside of the estate for estate-planning purposes, so there are estate-planning advantages that can be brought to bear; we would need estate-planning experts as part of the team to help to structure those.
Sometimes there can be life insurance solutions in an illiquid estate. Or there might be investment partnerships – perhaps a limited liability company or a partnership – in which the ex-spouses have an interest that can be used to generate income using income-producing property as one solution outside the realm of traditional support. However, this situation is rare because divorcing people don’t wish to have their lives interwoven going forward.
Are these cases taxing for every family law attorney or do some attorneys thrive on this kind of work?
They can be taxing, but at the same time they have a high energy of their own. I wouldn’t ever say they’re taxing to the point of being debilitating, but even for an attorney who claims to thrive on this kind of work, there are times when they feel taxed by it. Cases of this sort are complex; they require multifactorial strategies, and they’re not for everybody. I would analogize it to an airplane launch: you don’t want to burn all your fuel on take-off because you have an entire journey ahead – which is the case – and you need to get through the case in order to get the aircraft back on the ground.
These cases require an enormous amount of energy and focus. Although they are taxing, they can also be interesting because the people you’re assisting are, without question, interesting and successful people who are fun to help and be around.
As a follow-up to that question, what personal characteristics and personal experience do you need to have to be successful at handling high-stakes divorce cases for clients?
In terms of experience, you need to have a great facility with finance, numbers, business structuring, and estate planning. You need to have those under your belt; you can’t be guessing. You need to be able to speak the language and understand the concepts and the nuances.
My own personal characteristics that I think are helpful are that I’m very competitive and I enjoy winning. It’s what I wake up every day wanting to achieve. I challenge myself in my personal life. I do a lot of high altitude and alpine running. I recently ran a race in which I bested my time from previous years because I like pushing myself. That crosses over into business and I think those characteristics, which often match the personalities of the clients I’m representing, end up creating a good fit in terms of lawyer-client relationships.