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HBO’s Divorce Ep. 5, Gustav; Commentary by FK


HBO Divorce Series: Issues and Commentary—Episode 5


In Episode 5, Frances and Robert are positioning themselves for a serious divorce battle. First, Frances finds out the Robert has retained a lawyer (because the bone-head lawyer tries to call Robert at home—after Robert had essentially moved out—and France answers the phone). That prompts Frances to retain her own lawyer, someone who has experience handling divorces and seems reasonable. Having learned that Frances now has an experienced divorce lawyer, Robert decides that the lawyer he retained has little experience in family law, lacks self confidence and is not up to the task. Robert fires him and engages a lawyer who is over-the-top aggressive (for dramatic purposes, no doubt). On the one hand, Robert probably did the right thing in firing lawyer number one. Choosing counsel for representation in a divorce is one of the most important decisions someone can make in the divorce process. Having confidence in one’s divorce lawyer is critical and given the intimate nature of divorce in general, there must be a good fit between lawyer and client. On the other hand, the fact that Robert is happy with a lawyer who is combative and arrogant suggests that he’s more interested in the fight than the outcome. That doesn’t bode well for an amicable and constructive resolution.

The posturing and tension associated with the process of selecting lawyers could probably have been avoided, or at least minimized, if both Robert and Frances had scheduled one or more initial consultations with lawyers. An initial consultation would have given each of them an opportunity to gain an understanding of the divorce process and get a feel for the style and experience of a lawyer before deciding which lawyer to engage. At the same time, an initial consultation provides an opportunity for the lawyer to gather information, identify the issues in the case, discuss objectives, and begin to develop a plan to move forward towards a resolution. To that end, a lawyer will want to find out about incomes, any extraordinary expenses (e.g., uninsured medical costs, private school or college tuitions), assets, retirement accounts, property (homes, cars and other “stuff”), the ages, schools, and particular health issues of any children, and some marital history that helps explain why the marriage is in trouble. Finally, the initial consultation is the time to get an idea of costs, something all of the lawyers with whom Robert and Frances have consulted have conveniently ignored or avoided.

One thing that can be addressed in an initial consultation is the different mechanisms for addressing the issues to be resolved. In general, there are four such mechanisms: negotiation, mediation, collaboration and litigation (that last being available if all else fails). Each divorce case is unique. Some lend themselves to one form of resolution or another from the beginning; for others, the most effective means of resolution will change over time as priorities or expectations change. It’s not clear which path Robert and Frances will choose to follow. By the end of Episode 5 it seems like no matter what direction Robert and Frances’ divorce takes, it is bound to be contentious and unpleasant.

Review commentary By Mollie G. Caplis.

Episode 05: Gustav
Original Air Date: November 06, 2016

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– Fred Kobb is a litigator at heart. He first joined Wright, Constable & Skeen over 25 years ago to defend the firm’s railroad clients in serious personal injury cases. His practice quickly expanded into the family law area, where he applied his negotiation and litigation skills to zealously advocate on behalf of individuals whose families were undergoing a life-changing event. Read more >>