Perhaps Your Biggest Asset Following Divorce: The Bank Account of Emotional Capital

Alan R. Feigenbaum

A necessary part of every divorce action is financial disclosure in the form of a “Statement of Net Worth,” in which a client details their assets, liabilities, and monthly expenses. When clients send the form back, we attorneys are laser-focused on whether each and every asset and liability has been disclosed: bank accounts, business interests, real estate, whole life insurance, loans, mortgages, etc.

What you will not find on any Statement of Net Worth is what I have come to call the Bank Account of Emotional Capital. I’m sure you’re wondering how we go about defining this mysterious, intangible asset. Very simply: what you have in this invisible but quite essential account represents your ability to transition to the next chapter of life—after divorce.

Each divorce case is unique. Everyone’s familial circumstances are unique. There will always be divorce cases that do not lend themselves to a resolution prior to trial. That said, in many divorce cases, the time will come when the attorney can see an “Exit” door for their client, meaning a path to resolving the dispute, well before trial is on the horizon. When that happens, the opportunity to make a sizeable deposit to a client’s Bank Account of Emotional Capital is there for the taking.

The reality is that you and your attorney can make significant deposits into your Bank Account of Emotional Capital and you would be well-advised to do so. When the going gets rough, and it probably will, this account will be filled with “credit” for small concessions you have made, compromises you have offered or agreed to, and flexibility you have demonstrated when possible. Most important, this account will be filled with acts of civility that will put you in a strong and advantageous position from which to negotiate the things that matter most to you and your family. And, there is yet another added benefit: in the negotiation context, small concessions you make when trying to settle your dispute can generate material goodwill. That, in turn has the potential to cause your spouse to reciprocate—oftentimes, to an even larger degree.

Opportunities to build up the balance in your Bank Account of Emotional Capital can often present themselves in matters where financial and/or custodial issues are in dispute. For example, imagine your custody negotiation has the potential to resolve itself by agreement (in lieu of going to court where a judge will decide), but you and your ex still cannot agree on an access schedule. The difference between your competing positions might be one overnight in a fourteen-night cycle: Mom will agree that Dad will have four overnights; Dad, however, wants an increase to five overnights in that two-week period. Or perhaps Dad will agree to the four overnights, but wants an extra dinner with the children on one of Mom’s days. While we cannot view these examples in a vacuum because each family’s circumstances are unique, this fairly typical scenario is an ideal time to alter your perspective to a view into the future instead of fighting to win every skirmish. Of course, if either option would cause material disruption to the family, this is not the place for compromise. But all other things being equal, here is an opportunity to make a deposit that will serve you well. Not only will it resolve the dispute at hand, it will keep you out of litigation. Divorce can bring out the worst in people and often does. Sometimes, cooler heads do not prevail.

Look to your attorney to hit the “pause” button in his or her brain so that together you can thoroughly discuss the pros and cons of a dispute that might go to litigation versus finding potential resolution. As the client, insist that your attorney is not on autopilot. It can be all too easy to get lost in the high degree of emotion that can accompany contested divorce litigation. Your attorney is there not only to advocate for you, but also to provide sage counsel and perspective. If you can keep your eye on the prize of divorcing with the least amount of collateral damage to your family and finances, you will find your Bank Account of Emotional Capital will have a healthy balance and be a valuable, long-term asset.