Your job is to think and listen like a lawyer but talk to her as a kind acquaintance, someone who doesn’t know her well but is nonetheless warmly disposed toward her. (You’ve got to drop the criminal lawyer’s skeptical demeanor.) Prompt her, encourage her to answer your questions, but don’t press. It may take an hour; don’t let it go much beyond that. Nothing new will be said after that. (Shrinks stop after 45 minutes, on the same basic theory, I believe, and they do it with a level of ruthlessness that is the envy of appellate judges.) Take notes, of course; there’s no other way to remember the details (wherein God and the Devil reside). Then write it up. Or you can tape it. You’ll be off the case after that.
Fees: You’ll need to talk money with her, not something you do with your clients. The usual retainer for a divorce with children is $6,000, which covers the first 40 hours (at $150/hour), not including costs. She may wish only to consult, in which case you should bill her at $150/hour for the time you actually spend with her. If she decides to sign on, we’ll add the write-up to the bill; if she’s just shopping, we’ll eat it.
Client Conduct: Yes, find out if there’s another man or woman, for both Durkheims. We’re a no-fault divorce state, but if the case goes to trial, the judge can consider fault, and in custody fights, even the kitchen sink comes in. It’s always better to know what they’ve done—though of course, they always lie to you.
You might see if she has been acting out. It’s not unusual for one or both of the divorcing parties to misbehave, create scenes in public, make extravagant purchases with the joint credit card, slash tires, bug a phone or bedroom, in short, do things they’d never do in normal life. Judges don’t like really really bad behavior, and if it’s going on, it’s good (if possible) to nip it in the bud.
One last thought, which is not, strictly speaking, relevant but is nonetheless interesting. You might find out if Dr. D’s parents are dead. I’ve found that people are more likely to seek divorce—and do it more cold-bloodedly—after their parents are gone. I get the sense that Dr. D is the one pushing for divorce. Meiklejohn didn’t say this outright, but he mentioned his daughter’s reluctance to speak to an attorney. She felt it was too soon.
VIP Clients: The Meiklejohns and the Mathers (distaff side) are longtime clients of the firm. Proctor’s grandfather was the executor of Mrs. D’s great-grandfather’s will, and Proctor is the executor of her mother’s. Mrs. D’s mother (née Maria Mather) died more than 20 years ago. Ten months later, her father remarried. The current Mrs. Meiklejohn, Cindy, is, as you know, Society (if you can say there is any Society left in New Salem. Everyone—except you, of course—belongs to the Cricket Club these days: no more inherited memberships). She’s a good deal younger than her husband but more than ½ HA +7. My guess is she doesn’t care what happens with the Durkheims—except insofar as their behavior upsets her husband. She doesn’t like to see him unhappy. I’m with her on that. Good luck—and again, thanks.
Miscellany: Gentleman’s Agreement is a movie about anti-Semitism from the late ’40s, with Gregory Peck playing Jewish. You need to bone up on your movie backlist, Sophie. You have seen The Third Man, haven’t you?
TRAYNOR, HAND, WYZANSKI
222 CHURCH STREET
NEW SALEM, NARRAGANSETT 06555
(393) 876-5678
Divorce Work Sheet: Income & Deductions and Assets & Liabilities
Attorney Work Product
INCOME & DEDUCTIONS
Sources of Income (gross)
Salary
Employer 1
Employer 2
Other Sources
Self-Employment
Bonuses
Interest
Dividends
Royalties
Gifts
Trust Disbursements
Spousal Support
Other
TOTAL INCOME
Deductions from Income
Fed Tax ____ (#) exemptions
State Tax ____ (#) exemptions FICA
Medicare
Other
TOTAL DEDUCTIONS
ASSETS & LIABILITIES
Assets (fair market value)
Real Estate
Motor Vehicles
Personal Property
Retirement/Deferred Plans
Pension
IRAs, 401(k)s
Other
Bank Accounts
Stocks, Bonds, Mutual Funds
Other
TOTAL ASSETS
Liabilities
Mortgages
Loans
Automobile
Home Equity
Credit Card
Education Loans
Other
TOTAL LIABILITIES
Divorce Work Sheet: Monthly Living Expenses
Attorney Work Product
HOME
Mortgage
Principal
Interest
Real Estate Taxes
Rent (or co-op/condo minimum maintenance payment)
Insurance
Home Maintenance Including Allowance for Major Home Repairs
Grounds Maintenance (gardens, snow removal, lawn mowing, tree
trimming)
Utilities (heating, gas, electricity, water, sewer)
Phone
Domestic Help
Furnishings
Other
FOOD
Groceries
Children’s School Lunches
Other
CLOTHING
Clothes & Shoes
Dry Cleaning & Laundry
Other
PERSONAL CARE AND MAINTENANCE
Hairdresser
Hygiene Products
Other
TRANSPORTATION
Automobiles
Loan Payment
Gasoline
Maintenance & Repairs
Insurance
Excise Tax
Parking
Other Transportation
EDUCATION
Tuition & Fees
Loan Repayment
Other
CHILD CARE
Day Care
Child Support Obligations
Other
MEDICAL
Insurance
Gynecologist
Psychological Counselor
Physical Therapist
Dentist/Orthodontist
Eyeglasses
Prescription Drugs
Other
DEBT AND OTHER FINANCIAL OBLIGATIONS
Credit Card
Personal Loans
Alimony Payments
Other
PAYMENTS TO SAVINGS
Pensions & Retirement Accounts
IRAs, 401(k)s, etc.
Savings Accounts & Investments
Other
INSURANCE
Life
Disability & Long-Term
Other
LEISURE AND ENTERTAINMENT
Movies, Theater, Concerts, Sports Events, etc.
Sports Activities
Lessons, Fees & Programs
Clothes & Equipment
Eating Out
Parties & Other In-Home Entertainment
Vacations
Books, Magazines, Newspapers
Gifts
Entertainment Equipment (VCR, TV, computer, etc.)
Household Pets
Food & Supplies
Veterinary Expenses
Other
CHARITABLE CONTRIBUTIONS
MISCELLANEOUS EXPENSES (Specify)
TOTAL MONTHLY EXPENSES
Narragansett Statutes
Title 33 of the Narragansett Code, Sections 801ff.
Dissolution of Marriage, Annulment, and Legal Separation
Table of Contents [Redacted]
Sec. 801. Grounds for dissolution of marriage; legal separation; annulment.
Sec. 804. Service and filing of com
plaint.
Sec. 805. Stipulation of parties and finding of irretrievable breakdown.
Sec. 806. Paternity establishment.
Sec. 807. Orders regarding custody and support of minor children.
Sec. 808. Counsel for minor children. Duties.
Sec. 809. Parental fitness.
Sec. 810. Best interests of the child.
Sec. 811. Psychiatric or psychological evaluation of the child.
Sec. 812. Joint custody. Definition. Presumption.
Sec. 813. Presumption regarding best interest of child to be in custody of parent.
Sec. 823. Parenting education programs. Required.
Sec. 830. Equitable distribution.
Sec. 832. Alimony (also known as maintenance or spousal support).
Sec. 833. Temporary alimony and support and use of family home or other residential dwelling.
Sec. 834. Parents’ obligation for maintenance of minor child.
Breaking Free Without Breaking Down:
A Psychological Portrait of Divorce
Patricia Lahey
April 1997
Excerpts: page 37–39
People who get divorced are still attached. Separating is hard, even when husband and wife agree it’s the right thing. And usually they don’t agree on that any more than they agree on custody, alimony, or child support. They have to despise each other to go through with it. Otherwise, they can’t do it; they don’t have the stamina. They demonize the other person so that they can justify their delinquencies, their selfishness. And every party’s the injured party. Often the person who initiates the divorce is the angrier, the more self-righteous, the more vindictive. Not in the beginning necessarily. Guilt has a part but usually only in the early stages. People want to be right but never so much as when they’re divorcing.…
In my experience, men rarely leave, no matter how unhappy they are, unless there’s another woman. They find someone, then they leave. They don’t like being alone; they don’t do it well. The woman may not be someone he wants to marry; she may simply be a transitional object, someone to get him over the hump. The obverse doesn’t hold. If the woman is the one who is asking for a separation, there may not be anyone else. A lot of women simply want out; they fantasize about being alone, sitting in a white room with no phone.
TRAYNOR, HAND, WYZANSKI
222 CHURCH STREET
NEW SALEM, NARRAGANSETT 06555
(393) 876-5678
MEMORANDUM
Attorney Work Product
From: Sophie Diehl, Divorce-Attorney-For-A-Day
To: David Greaves
RE: Matter of Durkheim: Intake Interview Cover Memo
Date: March 17, 1999
Attachments: Fee Agreement
Intake Interview Transcript
Divorce Work Sheet: Summary Biography: Maria Meiklejohn Durkheim
Divorce Work Sheet: Summary Biography: Daniel Edward Durkheim
Domestic Relations Summons
Complaint for Divorce
You won’t believe this. Mrs. Durkheim’s husband’s lawyers (K&B! Get out the shovels) had her served with the divorce summons while she was having lunch with a friend at Golightly’s. I almost fell off my chair. I would have been less surprised if one of my regular clients told me he had offed someone during lunch at Golightly’s.
Down to business. I met with Mrs. Durkheim this morning at 10:30. I think I did okay; at least I didn’t bungle it, which was a possibility given my deficits, legal and human. Mrs. Maria (Mia) Mather Meiklejohn Durkheim has retained the services of the firm (but not me, as I explained to her) to represent her in a divorce action against her husband, Dr. Daniel E. Durkheim. She signed the Fee Agreement on the spot, barely glancing at the terms. I advised her against this but met stubborn resistance. The interview took an hour, the discussion of the laws and the retainer another hour, and the form-filling a half hour. (I billed her account $375, for two and a half hours of work, a first for me. Not my usual $50 plus costs.) I taped the interview and asked Hannah to transcribe it so Fiona (Felix? you?) won’t have to start all over again. It gave me a taste of how your generation of lawyers works, dictating into a machine and then having the secretary transcribe it. Associates type their memos and their briefs, too, and even do all the formatting. (I’m not being ageist, merely observant.)
My box of tissues went unused. Mrs. Durkheim did not vent. She was composed, collected, articulate. While she answered questions willingly, easily, she expected me to take the lead in the interview. She asked me to summarize the law and explain her options. I came clean early on and told her I was pinch-hitting for the firm’s ace divorce lawyer, who was out of town. She seemed fine with that.
I asked her questions about her marriage, the family’s finances, her daughter. She was very knowledgeable, no baby-wife she. I was able to pull together a rough chronology, synchronizing salary history and marital history. (See the Divorce Work Sheet: Summary Biographies for both Durkheims.) I explained Narragansett’s no-fault/fault statute and the principle of equitable distribution in dividing property and awarding support. I told her she could not effectively contest the divorce or refuse to cooperate. The parties do not have to agree to a divorce; if one of them wants out, she can get out. (“Not like a get,” she said.) I said it was in her interest to cooperate. A divorce, I explained, is simply a civil action which dissolves a civil union and allocates property, obligations, and progeny; it does not provide “closure” or any other cathartic function. (“I get it,” she said. “It’s all—it’s only—about money.”) I gave her a brief rundown on custody (best interest of the child) and explained the difference between joint and sole, legal and physical. I told her that most divorces were settled by negotiation, not trial, and that the parties could make any agreement they wanted so long as it wasn’t against public policy. I did my reading but reading isn’t experience. (By the way, I didn’t bill for the 2+ hours I spent doing homework last night; it didn’t seem right. A real divorce lawyer would have known it all.) If anything I said was incorrect, Fiona can set her straight.
I told her she had two options: she could wait until her husband made her an offer, or she could make an offer to him. I gave her a copy of the Divorce Work Sheets and told her to take a stab at pulling together a projected annual budget, post-divorce, for herself and her daughter. She said she would do whatever was necessary.
She was wonderfully clearheaded throughout. She’s very smart and she understands what she needs to do. She had even called a Realtor before coming in to get a new valuation on the family home. Can you believe she had the presence of mind to do that? The rich are different—and she knows it. She’s angry at her husband but her anger hasn’t clouded her judgment. She’s not out to fleece him. For one thing, she has, if not money of her own, then access to money; for another, though money is not nothing to him, he wants success more. And on that point, she doesn’t wish him well. She’s put a proper Sicilian curse on him.
Mrs. Durkheim has acted out a bit, though nothing too extreme. She conducted a brief, unpleasant correspondence with the woman she believes is her husband’s new lover. She brought copies with her and gave them to me. I’ve put them in the file, along with the note she wrote her husband after she had been served the summons at Golightly’s. Her epistolary style, as you will see, is very much to the point.
Mrs. Durkheim is 41 years old but looks younger. She’s tall (my height) with blond hair, straight black eyebrows, and eyes that look black. Although her Christian name is Maria, she goes by Mia and always has. She was named for her mother, who was called by her full name. Since her mother’s death, her father sometimes calls her Maria. She doesn’t think he does it out of sentiment, only carelessness.
I like Maria Durkheim. She still has a sense of humor (which was the first casualty of my parents’ divorce), and she loves her child. She probably sounds harder in the interview than she actually is. I don’t think her brave talk is all bravado—maybe half. She is determi
ned not to feel sorry for herself, at least not publicly. Good for her. Dr. Durkheim’s father died in 1992, his mother in September, 1998. He inherited a small amount of cash and a 10-year-old car.
Traynor, Hand, Wyzanski
222 Church Street
New Salem, Narragansett 06555
(393) 876-5678
ATTORNEYS AT LAW
FEE AGREEMENT
I, Maria M. Durkheim, the “Client” of 404 St. Cloud Street, New Salem, NA, hereby retain the firm of Traynor, Hand, Wyzanski, the “Attorneys,” in connection with: divorce proceedings and such other work as may from time to time be performed by the Attorneys on the Client’s behalf.
1. The Client shall pay to the Attorneys $6,000.00 as an initial retainer in this matter, and, in consideration of this payment, the Attorneys agree to perform legal services as herein provided.
2. The initial retainer paid by the Client shall be applied against legal services actually performed for the Client by the Attorneys (as well as any attorneys working under their direction). There shall be no minimum fee. The services shall be charged at the hourly rate of $150.00.
3. Hourly time charges for legal services performed include but are not limited to: court appearances; office conferences; telephone conferences; legal research; depositions; review of file materials and documents sent or received; preparation for trials, hearings, and conferences; and drafting of pleadings and instruments, correspondence, and office memoranda.
4. The Client shall in addition pay for all out-of-pocket disbursements incurred in connection with this matter, including but not limited to: filing fees, witness fees, travel, sheriff’s and constable’s fees, expenses of depositions, toll calls and faxes, and investigative expenses. The Attorneys agree to obtain the Client’s prior approval before incurring any disbursement in excess of $150.00.
5. The Client shall pay the initial retainer to the Attorneys no later than: April 1, 1999. The Attorneys shall provide the Client with an itemized statement of services and out-of-pocket disbursements on July 1, 1999, and every three months thereafter. In the event the time charges and/or out-of-pocket disbursements of the Attorneys exceed the initial retainer, the Attorneys shall submit additional itemized billings on the first business day of the month, payable by the Client within 30 days of the billing date.