Your Last Resort

Insight Strikes

We like to observe, “Children say the darndest things” when one of our kids announces something surprisingly insightful, mostly because they are not aware enough to understand the perceptive nature of what they have said.

But sometimes adults say the “darndest things,” as well. Then it’s our subconscious (perhaps that’s the child in us?) that has an epiphany. And, if we’re lucky, we recognize the insight our subconscious has offered us.

One day I was working with a client, identifying disputes on which he and his wife might possibly agree and narrowing the concerns in his divorce on which they could not. Discussing these issues was stressful for us both and he was agitated, pacing back and forth in my conference room while I sat at my laptop, taking notes. He continued to ask, repeatedly, as though I hadn’t heard or answered him the first twenty times, “But what does the law require us to do?”

I finally blurted out, “The law should be your last resort!”

He looked at me, suddenly stunned into immobility. “What?!”

The law does not require you to agree to anything in your divorce. No matter the circumstances, you are not required to share your assets. You are not required to split the debts. You are not required to share time with your children in any specific percentages. You are not required to pay spousal support. The IRS requires you to pay income tax, but you are not required to share that burden with your spouse. I can’t think of anything that you are required by the government to do in a divorce other than to support your children. And, in fact, there are even ways to get around that requirement.”

Taken aback, he blinked. “How does that work in real life?”

“As long as you and your wife agree, you can do anything in your divorce that’s not illegal. So, don’t misunderstand me; the law might be helpful in informing you as to what most people feel is the right thing to do, or the fair thing to do, but it may not be the right thing or the fair thing for you and your wife to do, either for yourselves or for your family. And you two know better than anyone else what that right or fair thing might be.”

Judges Agree

I started sharing this insight with my clients as well as with my colleagues and friends. I even put it on a poster so that my staff remembered to share it at the appropriate times.

Years later, I was in court on a now rare litigation matter when the judge decided to address both clients. As is typical, he began the conversation by assuring both that they had very good, well-trained lawyers. He suggested, as judges always do, that they would be happier with the result of their divorce if they could agree on what that would look like, even if it was not precisely what each of them wanted.

And then he startled me.

“Don’t ask your lawyer what the law requires you to do in your divorce because that’s really irrelevant. If the two of you can agree on what’s best for your family, then ‘The law should be your last resort.’”

Apparently, my insight has taken on a life of its own!

If you and your family are facing trauma that you can’t handle alone, whether it’s divorce or the post-lockdown impact of the pandemic, or some other more personal stress, reach out to Joryn Jenkins at Joryn@OpenPalmLaw.com or find her at OpenPalmLaw, where we are changing how divorce impacts families!

Learn more about collaborative divorce. Follow Open Palm Law.

Need advice now? Contact Joryn!

About this week’s author, Joryn Jenkins.

Joryn, attorney and Open Palm Founder, began her own firm here in Tampa after a 14-year career in law, two of which she served as a professor of law at Stetson University. She is a recipient of the prestigious A. Sherman Christensen Award, an honor bestowed in the United States Supreme Court upon those who have provided exceptional leadership in the American Inns of Court Movement. For more information on Joryn’s professional experience, take a look at her resume.

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