He Said, She Said
When "I do" becomes "I'm gone," things can get a little dicey. Two top divorce attorneys dish a little dirt on the dreaded D-I-V-O-R-C-E.
Photos by Brandon Dill
It sparks pain, tears, and songs of lament. It's the end of a relationship, a family, an era. It's a business that rarely slacks off as unhappy mates continue to sever ties. It's called divorce, and over the last four years — 2006 through 2009 — more than 10,000 individuals have had marriages dissolved in either Shelby County Circuit Court or Chancery Court.
We talked to two attorneys who specialize in family law, helping clients navigate a world that's alternately scary, sad, infuriating, and, on occasion, hilarious. One is Larry Rice, a partner with Rice, Amundsen & Caperton and a 34-year veteran of divorce courts. The other is Margaret Chesney, a partner with Rogers Berry & Chesney, who started her career a decade ago. Rice makes $400 an hour; Chesney makes $275. Though from different generations, their interviews illustrate that, for better or worse, some things never change, especially human nature. Here they share the lows, highs, and oddly humorous moments of being a divorce lawyer. Surprise — they also offer some tips to head off marital misery.
And free of charge, no less.
Your father was a lawyer, but you weren't headed in that direction at first. What turned you toward this career?
At [Southwestern] I had a double major in history and communication arts. While there, we had a sit-in at the Bellingrath dormitory protesting the fact that boys had open dorms but girls had to have visitors out by midnight. Those who participated in the sit-in were hauled before the social regulations committee. Fourteen of us known as the Bellingrath 14 found a procedural flaw in the regulation. The case was dismissed. Once I tried and won that first "case" I was hooked. I graduated from the University of Memphis Law School in 1976. I joined my dad's firm in 1974 as a law clerk, and had actually worked there since high school as a runner.
This firm is a general practice. How did you come to specialize in divorce and family law?
At first I specialized in whatever came in the door. Personal injury, wills and estates, DUIs, divorce. Then a guy came through lecturing on probate and he had a system — or a guide on how to do it step by step. The key to systems is you can anticipate and plan and provide for 90 percent of what goes on in a case.
And you had a system for divorce?
Yes [lifts a hefty tome and smiles]. Complete Guide to Divorce Practice, third edition, working on the fourth. It's good for offense or defense — you can beat somebody to death with it or it can stop a .38 caliber slug.
Has the economy affected divorce?
For us it's remained the same. If a slot opens, somebody's waiting to fill it.
Hard times don't make couples stay the course?
When traumatic events happen, people cling together. After 9/11, we saw a dropout for about nine months. Then it picked up again. Same with the economy when it tanked a year or so ago. But bad finances don't keep people together.
What reasons, or grounds for divorce, do you see most often?
The top one is inappropriate marital conduct. That includes adultery. In defending a spouse accused of adultery, Tennessee is very practical about it: Condonation. Condoning means to forgive, and if you have forgiven and accepted the adulterous spouse back into the marital bed, then you've condoned their behavior. You knew about it, and you had sex with 'em anyway. So you would lose your case. But if you file under inappropriate marital conduct, neither party has to get into that and you can negotiate.
What about "cruel and inhuman treatment"?
That's what inappropriate marital conduct was called before divorces were granted for irreconcilable differences. So we'd have everything worked out, signed up, then serve somebody with those grounds, and they'd say, "Okay I've been agreeable to this so far, but I'll be damned if I'll be called inhuman!"
Other grounds you deal with?
Behavior problems. Some of these you can't fix with love and understanding. Addiction is the classic one. Borderline personality disorder is another. It sounds so innocuous, but it's not. People with borderline personality disorder are paranoid. They see relationships in terms of power: "I'm going to be in charge or I will destroy you."
What's at the root of most divorces?
People break up because they've irritated the hell out of each other. They wear each other out. I've seen couples get back together after multiple adulteries. Others break apart with no outside party involved. Marriages are like battleships. Every once in a while, a hit may blow up the whole ship. But typically they accumulate damage and get slower until they finally sink.
Tell me about your toughest case.
Eldridge v. Eldridge. These were wealthy people who couldn't agree on division of property. They also fought about grounds, which made no sense. Grounds were adultery and we had ample proof of it. Mrs. Eldridge had not behaved appropriately. I was defending Mr. Eldridge. The most damning thing was some photographs that Mrs. Eldridge herself produced.
Why would she produce damning evidence?
When you try to understand the behavior of irrational people you can only irrationally understand it. People do stupid stuff and I believe they'll continue to. I have brought my son into the business and he is confident he will have a job as long as he lives.
When you work with other divorce attorneys, what characteristics do you appreciate?
One of the most difficult things for a divorce attorney to know is when [he or she's] got a good deal. The best attorneys will know the law, the judges, the procedures that will help us work things out. They're tough in the courtroom when it's called for, but can work effectively to resolve things outside the courtroom.
Child custody cases must be among the hardest.
Yes, they are. But I'll tell you my Christmas card story. I had a history professor at Southwestern who later came to me when he was going through a divorce and wanted custody of his 10-year-old daughter. We tried the case in front of Judge Allen Highers, who stepped up, beyond normal preferences in those situations, determined the father really loved the child more than the mother and gave him custody.
What convinced the judge?
The tone of the mother's testimony. She brought her anger onto the stand and it flooded out. My client went on to raise his daughter, she graduated from Duke, and has a successful career as a writer. At Christmas I got this card from her with a happy picture of another little girl, my client's grandchild.
Anger doesn't play well on the witness stand.
Right. Neither does talking bad about the other parent to your children. Such behavior hurts you and your relationship with the child more than it will hurt the other parent.
You see some sad situations — but funny ones too, right?
Oh, you want funny. Had a case with David Haywood. I represented the husband. He represented the witch. She admitted she was a Wiccan. We filed the case and no sooner did I do that than I broke a toe. We took her deposition, got her to admit some stuff, then I had my back go out. Then getting ready for trial I had to have disk surgery. Then another surgery. So we were finally at the courthouse getting ready to try the case. Mr. Haywood came up and leaned over me and said, "I don't think you can try this case." At this point I still wasn't feeling right, so I was grumpy and asked what he's talking about. He said, "Don't you see, every time you win in this case, something goes wrong. My client's got a hex on you." I gave him the brush-off. When the judge finished ruling, my son leaned over and said in my ear, "That's a great result. You're a dead man, dad."
Do any clients ever change their minds and stay together?
Oh, yes! And we get them to counselors and have them draw up reconciliation agreements. That's one of the best wins you can have in this process, when both people realize how important marriage is and what it takes to fix it.
You've written several books about divorce. If you were to write a book about making marriage work, what would you say?
[Pulls out a notebook.] Ah! "How Not to Hire Me." That's the workshop I give. Been doing them about a year and a half. Why? I have a lot of karma to balance out.
What advice do you give?
Continue to date each other. Spend time together. Be polite. Find out what makes your spouse happy and do it. And one thing I tell men and women, they really are different animals. Men are dogs, women are cats. You give a dog a warm place to sleep, feed it, talk nice to it. You can get in a fight with it, and before day is over it's your friend all over again. If that's not a guy I don't know what is. Cats are sleek, independent, and they can retract their claws when they want to.
Emotional differences between the sexes?
I explain it in terms of TV. Men have a nine-inch black-and-white, with one antenna sticking up, no remote control, have to change it with a knob. That's our emotional TV. Women's are like this — big flat panels, 256 colors, one emotional color is fuchsia, another is mauve. The guys are looking at their black-and-white and saying, "I don't get it." So being mad at your husband for not understanding subtle emotional issues is like being mad at your cat because it won't do algebra.
What other advice do you give?
That sex is a very important part of most people's relationship. And that men need to appear to pay attention to their spouse, and the best way to is really pay attention and learn — because now and then you'll hear something useful. Also, get a little lotion and rub your wife's feet. I do that for five minutes and I can get away with a lot.
Men have quite a bit to learn?
Some do. Guys should know there are certain evolutionary tests your spouse will perform on you from time to time. Like, does this dress make me look fat? If you're so stupid as to say yes, then you do not have genes that should be passed on to another generation.
You have fun with this workshop, but you're serious too.
Very much so, and practical. For instance, procrastination is a good thing. When you get mad, instead of yelling, write down why you're upset. Look at it the next day, it's usually not significant anymore. But if it is, talk to your husband; that's better than yelling at him when you're really mad. One of the hardest things in a marriage is show biz. I don't mean being in movies. I mean when you go to him and say, "I'm gonna show you!" Nothing good ever comes of that.
How'd you meet your wife?
I was student council president at Hillcrest High [in Whitehaven]. Joy Gaia was student council president at Sacred Heart. We both attended a convention, met there, and had our first date — went to a jazz recital — on December 14, 1969. I married her in 1974.
Did you two date exclusively all those years?
We broke up a few times, dated others, but in the end not only was she pretty but she was the sweetest, kindest, best person I knew. Marrying her was the best deal I ever made.
What has helped your marriage?
A judge named Charles McPherson, now retired — if he got upset with you he flat let you know it. So when I might be mad about something, I'd picture myself appearing in front of Judge McPherson saying, "I want a divorce because . . ." and fill in the blank. Either he'd say, that's a good reason, or he'd say, "That's why you want a divorce?!" And over the years Judge McPherson in my mind never told me I had a good reason.
Other secrets to a good marriage?
The great thing about mine: My wife puts history behind her. A great breakthrough was when Joy convinced me we don't need to deal with the past, with things we were upset about last year or month; they're gone.
What prompted your interest in divorce and family law?
When I was an undergraduate at the University of Pennsylvania, I took a course about sexual discrimination in the law. That really interested me, the fact that people need to know their rights, so I applied for law school and was accepted at Santa Clara University [in Silicon Valley, California]. But I didn't really like law school until I took a course in family law. That was like a light going on; I thought I can make it through this because I've found what I want to do. I graduated from the University of Memphis Law School in 2000.
What specifically do you mean by rights when it comes to divorce?
Clients want a square deal. But some get taken advantage of. They've hired somebody and are in the dark about how it's going. They don't know if the complaint's been filed, if any grounds are alleged, just haven't been informed about the whole process. That's not right.
Talk about some points you've helped people understand.
Even in these days of no-fault divorce and cases settled through mediation, fault can still be important. If a person is at fault, and that fault led to the demise of the marriage, it can affect alimony. Clients need to understand these important aspects in divorce: division of marital property, alimony, and parental rights, and child support.
Do many of your cases involve contested child custody?
Yes, though today, the word custody isn't used so much. The courts refer to the permanent residential parent and the alternate residential parent. But the same thing still makes the cases tough — when parents are so upset or involved in their own drama, they don't consider how it affects their child. I can represent either the wife or the husband, not the child, but ethically I'm not going to do something that's not in the child's best interests. Sadly, a lot of times, each parent wants to win so much that they can cause irreparable damage to the child.
There's a term called parental alienation which is being recognized by psychologists and attorneys. That's where one parent is so bitter and angry they turn the child against the parent so they can never have a relationship with that parent again. I worked on a case a few years ago where the mom had just poisoned her daughter against her father. He kept trying to see his child, but was thwarted at every single opportunity. He emailed the mother and said he'd like to go to the girl's high school graduation and could she tell him when it would be. The mom told him their daughter wouldn't have a graduation service because she was homeschooled. Meanwhile she had sent invitations to a whole bunch of family members, one of whom gave my client a copy. So he sat up in the back of the balcony and watched the whole graduation that he wasn't invited to. If he were abusive or doing inappropriate things around the child, I could understand, but all he wanted was a relationship with his daughter. That's the sort of thing that keeps you up at night, to think how someone could do that.
What were you able to gain for him?
More enforceable parental time. That's all he wanted.
Do you ever have a client you feel may not be as good a parent to the child as the partner?
Yes. And when that's the case, I try to steer that client accordingly. If they persist in a path I think is not ethical then obviously I can't continue to represent them.
Ever had to turn down a case?
Yes. Maybe a conflict of interest, if you or someone in your firm met with the other party in the past. That's a conflict. Or, again, if ethics come into play. Say somebody comes to me and says, "I know my wife wants custody of the children. I don't, but let's fight for custody so I can pay her less alimony." That's happened, and I wouldn't represent that person.
You mention the growing number of cases handled through mediation, or settled outside of court. Why is that?
In the ten years that I've been practicing law, the courts have started requiring mediation in all cases that involve children. We're not only required to, but we've realized that mediation gives your clients a lot more control over their case. They can work out details in a parenting plan that no judge will order because of the time and detail involved. We settle most of ours. It's so much better for the client.
Does the case still go before a judge?
In Tennessee, a divorce is either contested, which means in front of a judge, or uncontested, which means the parties agree on everything. In that case, there's a short hearing before a judge in which the parties sign the parenting plan.
What are the most common grounds for divorce?
I often file inappropriate marital conduct because it can encompass anything from adultery to withholding affection to abusive behavior. What people don't realize is that divorce pleadings are public record. So if you specify adultery as the grounds, then your friends, your children, their friends, complete strangers — anyone — can all look at it. Why put a lot of embarrassing stuff out there for the world to see if the chances are you're going to settle the case anyway? Or maybe there's habitual drunkenness. Filing on those grounds could affect the party's employment and that could affect alimony and child support. So I don't file pleadings like that unless I absolutely have to. The marital dissolution is still on file, but it doesn't address grounds.
Any clients who seek a divorce because of a partner's sex addiction, as in the case of Tiger Woods?
I'm not sure if I believe in sex addiction. I think it's just people doing what they want to do. People cheat, some a lot, and I don't think men are any guiltier than women. We've got clients who get [sexually transmitted diseases], some curable, some not. If you're working with the client who gave the client the STD you're trying to settle that case as quickly as you can!
How do you feel about using private detectives in a divorce case?
Sometimes a case warrants it, but a lot don't. A detective might spend two days and huge amounts of money and not get anything accomplished. But if they get the goods, it can be money best-spent. Today, though, you don't see the Perry Mason, smoking-gun sort of thing. And if the case settles, who cares?
Do people ever file and change their minds?
Sure. And if the reconciliation works, I'm happy for them. I'm not pro divorce or pro marriage. I do think when people know it's over they should just move on.
To what extent to finances or the state of the economy keep people together?
I think the people who have high-end divorces may not have them, and those who really can't afford them might not. But the middle range of people, they're still getting divorced.
If you were going to advise how not to get a divorce, what would you say?
Don't ignore the little things that arise in a relationship. The little resentments keep getting bigger and bigger, people grow apart and they reach a point where they can't come back together.
You're not married, right? But you're still in a position to offer advice. What would you tell a person before he or she marries?
First, do it for the right reason. We see a lot of starter marriages. The couple dated through college, graduate, figure they should go on and get married. Then they grow apart and divorce. I've never understood that mentality: Let's get married because it's time.
As more women have employment and assets, they should decide what they want to have happen to those assets in the event of divorce. You could have $100,000 in the bank that has nothing to do with your spouse and you get married and make it joint and divorce a few years later, he's likely to get half of it.
You recommend prenuptial agreements?
My three sisters are married and my parents got so mad when I mentioned a prenup for each of them. My folks got married in 1969, didn't have anything, and are still happily married. My sisters were married after they'd acquired assets, and I said, "Protect them." But nobody listened to me [laughs]. Two are older, one's younger, and she's the more traditional! I think my folks saw me as being pro-divorce. I'm just pro good sense. You work hard for what you have; it shouldn't be a marital asset if it's not.
I guess you see clients who are clueless about their finances.
You wouldn't believe how many people come here not knowing about their assets or their debts. I can't stress enough how important that is. Also, be aware of your spouse's spending habits. A case in point: My client's husband kept getting $500 at a time in cash at an ATM. I started looking at his records and it seemed like a lot of cash to get at two o'clock in the morning, and I wondered, "Where is that ATM?" Turns out it was right in front of Platinum Plus. That's dissipation of a marital asset to spend $10,000 a month on a [topless club] instead of your family. But you have to prove that if you're going to get that money back.
How did that case turn out?
Not so well for the husband!
Domestic abuse as grounds — how often do you see that?
It comes in spurts. It's a pattern, not a one-time thing. And not just men. Women can be violent and certainly irrational. My client's wife would stalk him at his house, then call the police and accuse him of harassing her. Once it got to court and we could put on proof, my client had an order of protection and we were able to use that to help us with divorce negotiations.
I guess you've seen a little of everything.
I had a case in another county where we had to have a case on dog visitation. Now, pets are considered property so that issue does come up, but this hearing took three hours of the trial. And I kept looking at our [judge], wondering how long he'd put up with such passionate arguments. But my client did get custody of the dogs because she'd spent more time with them and taken them to the vet. The husband was very upset. He was allowed visitation, but that didn't go well. I understood it was painful, and I wouldn't want to give up my dog. But with the time and money spent on that, the man could have bought or adopted another one.
What's your favorite part of the job?
Usually the person who meets with me at the beginning is a very unfortunate person. And what I love is a couple of years later, when I run into that person, they've moved on and are the person they should be. They get closure. Maybe they've met somebody else, or maybe not. But they're doing a lot better.