Episode 120: The Upside Down Divorce: Dos & Don’ts

s Sara Khaki 00:05

Empowered people make informed decisions that lead to living a life without regret. This is Sara Khaki and Shawna Woods from Atlanta Divorce Law Group. And this is the Happily Ever After Divorce podcast.

Welcome to the Happily Ever After Divorce Podcast. I’m attorney Sara Khaki with Atlanta Divorce Law Group, and I’m joined by our managing partner, Shawna Woods. Shawna, today we’re gonna talk about upside down divorces. ⁓ So from my understanding of an upside down divorce is that you go to the lawyer last, go to your divorce lawyer last. You start with therapist, you kind of with the help of the therapist, sort out family structure, there’s children.

parenting plan perhaps, the custody arrangement. And from there, then you go to a financial advisor of sorts. I guess that could take many different types of financial experts to help out with that process where they help you figure out finances, the division of assets, what that would look like. And then you go to a lawyer to sort of formalize all of that.

Loaded question. What are your thoughts on this process?

s Shawna Woods 01:21

Well, obviously as a lawyer, the immediate thought is, is what they’re going to be doing even enforceable in the court. When you come to the lawyer last and you say, here’s what we agreed upon, and they look at it and they see all the holes for the things the court wants to enforce, then you have to either go back to the drawing board. Now the other person’s upset because they’re being told what they want to do, they can’t do, they don’t know if they’re going to trust you or not trust you at this point.

s Sara Khaki 01:29

Great.

s Shawna Woods 01:50

I’m not opposed to people doing what seems to be an uncontested divorce by working it out with experts. We do that here. We involve the experts here. We involve the therapists. We involve the financial advisors. But my suggestion would be, if you’re to try this upside down divorce, is you need to start with the attorney to understand what the legal rights are, what your legal responsibilities are.

s Sara Khaki 01:58

We

s Shawna Woods 02:18

What the court is and is not going to say is acceptable. The other thing that your therapist and your financial advisor may not be looking out for is five, 10, 15 years down the road and what these ramifications are for the things that you agreed to. When you have somebody that has been experienced in divorce, we know the things that can happen five, 10, 15 years down the road. So I’m not saying it’s a bad idea.

I’m just saying you might have to involve the attorney in the beginning if you actually want an agreement that can be enforced and it’s going to be valid.

s Sara Khaki 02:57

And when I hear this process going, you know, upside down, obviously, turn me, you know, I’m always coming at these things from the psychology of the negotiation piece. Because I find, you know, negotiation psychology fascinating. It’s so much of what we do with BAMNO, there’s so much psychology behind these deals. What I’m really hearing is we are terrified of putting us up, there’s a fear of lawyers. That’s what I’m hearing.

s Shawna Woods 03:22

lawyers.

s Sara Khaki 03:28

And it’s how much can we pull lawyers out of this conversation? And there is this underlying fear that divorce lawyers will put us up against each other. They’ll tear our family apart. They’ll tear our finances apart. They will make us fight over things we weren’t initially fighting over. And so it’s, I hear this not from a place of, know, this is how we can be more thoughtful about what we’re doing. I hear fear behind it. I hear fear of returns.

So I would say that if that, for all the reasons you’ve said, that is not a completely unreasonable fear. You know, to be very frank, I agree for two people to, there is a time and place that that could happen. You hire lawyers that you do not fit out properly or ⁓ have a philosophy where they’re projecting their own values into your

s Shawna Woods 04:06

Bye bye.

s Sara Khaki 04:27

divorce or your family, yes, this could happen. Also, if you’re susceptible to quickly just letting somebody else do all the thinking for you without you knowing, what do I want? What would be in the best interest for me and my children? You know, what does five years down the line look like? If your lawyer’s not engaging and challenging you to think about these things and think about your future as you’re going through these processes, then yes.

This fear could be realized that, you know, the two people lawyer up and two people that don’t really know what they want from the divorce, they’re just angry with each other. They don’t know what they want the outcome to look like. They are, they’re not healed enough to have proper conversations and then it all can blow up on each other’s face. But we see that happen in therapy as well.

Absolutely. We see that happen when they’re meeting with financial advisors as well. So I don’t think that fear is isolated to just attorneys. think it’s any time you put your life in the hands of a professional without taking it and without that professional, making sure you’re able to make some clear standards for your own life and help you make those some of those critical life decisions and you take helps you take ownership of those decisions. Yes, you run into this.

You can run into that with a lawyer, financial advisor, therapist, any question.

s Shawna Woods 06:00

Absolutely. I think that you hit on something very key is a fear of an attorney. Yeah. And that they’re going to blow this up, which one, yes, you have to vet your attorney very thoroughly. I think that that’s one of the most important things that you can do is make sure that your attorney and you are aligned with what your goals are and what direction you want to take and how high the heat is on that direction that we take it.

That’s very essential to lessening that fear, not only that vetting, but knowing that you are empowered to say, this is not the direction I wish to go. I’m interested in this, the taking of the advice and then taking it to make it what you want out of your divorce and what you want for your family. And that’s really important that how we work here with our clients is the first thing that we ask them is what are your goals?

Because a wind for you looks differently than a wind from the neighbor, right? It’s very important, however, to get over a fear because this document that you are going to take has to be sanctioned by a court, right? Who speaks the language you don’t speak, who speaks the language the financial advisor doesn’t speak, who speaks the language the therapist doesn’t speak. So if I’m coming into something afraid,

The last thing I want to do is coming at it with languages that the people who I need to give this to, they’re going to tell me you’re not speaking the right language. That’s a key point that I think that this is important here. But to your point upon negotiations, if you’re trying to start out on an even footing, I don’t know if even footing is where you’re coming from.

s Sara Khaki 07:47

Right. And I think also what you’re saying is you don’t go to the at least at some point early on, have that conversation about what is the legal landscape of this look like? ⁓ You are starting to plant trees in a forest that you don’t, you’re not even aware of. Right. And that’s what you’re doing with started talk about parenting plans. That’s what you’re doing when you’re talking about the division of assets, you’re planting trees that you don’t even know what is the landscape I’m on.

Right. And you do need to be able to go to an attorney, have a vision for, have the attorney help you build a vision for what it is you want. And then that equips them to architect and design the landscape, the legal landscape that you have to get there to go there. Very early on, yes, we could include financial advisors. We could include therapists. ⁓ But there is, to what level are we engaging them into this? Right. Yes.

s Shawna Woods 08:46

So I’m just giving you an example because I have had people come to me with parenting plans. They said, hey, we’ve worked this out with, you know, so-and-so co-parent or whatever it was and was not and had no legal background. And it had clauses in there that were completely unenforceable. They were very idolized. And when they were then locked into those ideas. Give you an example. One of them was the decision making power.

hearing the state of Georgia, Georgia demands that we have a final decision maker on four areas. That’s education, extracurricular, medical, and religion. Well, they came with a parenting plan that says, if we can’t decide, we’ll go to a therapist and the therapist will decide. Well, you can’t do that in the state of Georgia. It’s not allowed. So then you’ve got two people who are locked into not allowing the other person to make a decision on that final decision making power.

You’ve put yourself in a really bad negotiating power and you’ve started off poorly, right? Another one I had was moving. They wanted a clause in there and everybody agreed to it that no one can move outside the state of Georgia. Well, that’s been held unconstitutional for a very long time now. So now we’re back again at this situation. Neither one of them feel like they’re in a good situation. They’re afraid of what the other one is going to do because they don’t have this clause.

that shouldn’t have been in there in the first place.

s Sara Khaki 10:17

And I think I have seen many clients come to us where thanks to therapy, they are at a healed enough emotional state that they can have conversations with us about what is their vision for the future. They’re able to have conversations from a place of clarity. They’re able to communicate with their spouse. You know, I always talk about the midnight teaching table conversation about

What do we want from this, right? They’re able to have those communications with their spouse because of therapy. I think to that extent, you can get therapy before you see a lawyer to get you to that point. There’s also a point where you can go see financial advisor before you see a lawyer. And I think that point is, right, Mr. Financial Advisor, what’s our financial portfolio look like? Let’s both at least know what’s there. But having discussions about

s Shawna Woods 10:58

Absolutely.

s Sara Khaki 11:15

How do we split it? How do we do this? How do we do that? That’s where you’re putting on the plate of the financial advisor decisions and advice that they are not equipped to make with.

s Shawna Woods 11:27

Well,

I’m gonna go out on a limb and say most of they don’t want to make with you because you’re asking them to make decisions on what’s the best interest of both of you. And there may not be a congruent agreement about what’s best for both of Right. And they’re in a situation where they’re going to have a fiduciary duty to one or either with you because most people cannot stay with the same financial advisor once they’re divorced. So there may be some unconscious biases.

s Sara Khaki 11:41

right.

s Shawna Woods 11:55

about the person who’s going to be staying with that advisor versus the person who’s going to have to leave. And that’s not intentional. I’ve experienced wonderful things with all of our financial advisors. But there is dynamics that go on underlying it that I don’t know if all of those parties are even aware.

s Sara Khaki 12:15

Right. So really, I think in conclusion, I we’re both saying that if you are planning to do the upside down divorce, use therapy for what therapy is for, which is helping you gain clarity and idea of what it is you want. And hopefully to a healed enough state that you can have this open communication with your spouse of what, what can work for us. Yeah. And you guys can start that communication.

Use financial advisor to understand what does your financial portfolio look like? What does the marital balance sheet potentially look like? Then take the combination of that and the conversations you’ve had with your spouse at that evening kitchen table. There’s two paths there. You know, you make sure you vet out your attorney. ⁓ I always say that quality of professional services you get a lot of times depends on

Well, I’ll give the questions that professional asks of you. And that’s how you can understand somebody is projecting their own values or checking some boxes for a cookie cutter method that they’ve done the other hundreds of cases they’ve done. they really getting to know what’s important to you? What you’re hoping to have in the future when all this is done. And then they can kind of architect that landscape for you, put those pieces together. And if your communication is healed enough with your spouse.

You can take that back and it’s an ongoing process versus creating a very fragile negotiations based on things that may blow up in your face.

s Shawna Woods 13:57

Absolutely.

s Sara Khaki 14:04

Thanks for listening to the Happily Ever After Divorce Podcast. If you’d to learn more, go to atlantadivorceloggroup.com forward slash resources.