Laura Wasser on the last 20 years of family law and what might happen if Obergefell is overturned
Published in 2023 Southern California Super Lawyers magazine
By Erik Lundegaard on January 11, 2023
Back in 2004, Laura Wasser graced the cover of the first Southern California Rising Stars magazine, where she talked about repping all five members of the band Korn, traded jokes with her father, and told of the Seussian origins of the star tattoo above her right ankle. She’s now a regular on the Top 100 Super Lawyers list and the go-to attorney for celebrity divorces, having repped Britney Spears, Angelina Jolie and Kim Kardashian, among others. We caught up with her in September.
Welcome back. What are some of the big changes you’ve seen in family law over the last two decades?
One of the big things, of course, is same-sex marriage. Although we did same-sex breakups at the firm 20 years ago, now we have the benefit of being able to treat those individuals as married. They get tax benefits when they’re effectuating a settlement.
I’ll give an example. When you divide a marital estate, it’s a tax-free event, 1041 exchange, and that’s federally. So if you and I are married, and I am giving you half of my stock portfolio, that won’t be taxed. But if you and I were the same sex, and we just split up because we weren’t married, and now I’m giving you half of it, then you would be taxed—as though it were a gift to you. That’s a hit that the federal government benefits from and the parties don’t. That’s an example of why it’s better to be able to be married.
Is there concern that Obergefell might be overturned the way Roe was?
We’ve had a few of those conversations. Look, we’d figured out within the family law world how to work with couples who were living together, cohabiting, co-parenting, and so we would go back to what we’d done before. Going backwards in the law like we did with Roe would be, I think, devastating, but as family law practitioners we’d figure out how to serve our community. It’s a fear. Nobody thought that what could happen with Roe would happen, and yet here we are in 2022.
What other changes have you seen in family law?
Our court system has gotten more overcrowded and the budgets have gotten less. But I guess the silver lining to that cloud is that I am seeing a shift—certainly in family law—toward mediation and alternate dispute resolution. People are working stuff out.
I think we’ve gotten smarter about hiring attorneys and paying attorneys and wanting to see how the sausage is made. People don’t want to pay for somebody else to just do things in the shadows with seasoned colleagues. They want to know how it works. And it’s really expensive to try a case. To have a family law trial in this town can cost you anywhere between half a million and $2 or $3 million—and that’s for something that shouldn’t even be difficult. It’s just the delays, and the court dates, and the experts.
I also think people are getting more educated about mental health and what’s best for their kids. So rather than having long, drawn-out custody hearings and evaluations about children’s best interests, they’re realizing it’s in their children’s best interest to work together—to make it clear that they’re still a family even if they’re living under different roofs.
And then, of course, people are doing things remotely via Zoom. There’s been some issues just in terms of the ability to do things collaboratively and teach younger attorneys, but for the most part, the remote shift as a result of COVID has been a cost-effective one.
Are you in your office at Century City?
I am. When my kids were home from school [during the COVID pandemic], I was spending more time at home. But now that they’re gone during the day, I’m coming in. I’m the managing partner, so I need to be able to see what’s going on and have an open-door policy. But I live very close, so it’s not hard for me to come in.
We have a staggered schedule here. We work from home on Fridays, and then half of the staff comes in on Wednesdays and half on Tuesdays, but everybody’s here on Mondays and Thursdays. We’ll see how that works out. I’ve been watching the billable hours and seeing how our younger attorneys are able to learn and figure out how it’s all done. So I don’t know. Check back with me in another 20 and I’ll let you know how it’s going.
The other thing that I will mention is that, in that 20-year period, I began a startup for online divorce, which was acquired earlier this year by Divorce.com. You’re seeing people doing it themselves and figuring out a way to educate themselves and mediate online without even necessarily the benefit of an attorney.
What are some things clients can’t DIY?
If you hit a wall, if you really can’t agree on what the appropriate amount of support should be or how an asset should be divided, then you’re going to either need to ask us for a referral for a mediator—who can maybe bring a neutral third-party opinion to the situation—or to attorneys who can actually take that issue and figure out how it should be resolved.
And prenuptial agreements. It’s interesting that you can get divorced and represent yourself, but if you’re going to negotiate and draft and sign an enforceable prenuptial agreement, you need attorneys.
Have you heard from any other family law attorneys saying, “Hey, wait a minute …”
“You’re cannibalizing us!” Some people say that—maybe jokingly. I think most of my colleagues are like-minded in that we would like to see things get resolved. I explain this to people all the time: The more conflict there is, the more money we make. But our job as practitioners is to try to reduce conflict and resolve things. But yeah, there are plenty of people out there that are making a buck off of stirring the pot.
On that same subject, one of the things that’s also changed in the last 20 years is a real rise in domestic violence in family law. And when I say domestic violence, I don’t mean that domestic violence is on the rise, I mean that domestic violence allegations are on the rise. Either way, it’s not good. But when you have attorneys counseling parties to make a domestic violence allegation to somehow benefit their client in a financial manner, and you have the courts clogged up with those domestic violence accusers, then the people who are really suffering under the hands of domestic violence don’t get the court time they need to make sure they are safe.
Social media has certainly prospered. I assume you have to warn clients about what they post.
Yes, for evidentiary purposes, it’s obviously better to be on the down-low if you’re having some kind of a contested custody hearing. If you’re arguing about your ability to pay spousal support, and you’re posting pictures of yourself in a Ferrari with $100 bills flying out of the car, probably not a good thing.
I think more impactful is the media in general. Twenty years ago, you didn’t have—the minute you filed a divorce document in downtown Los Angeles—that it pops up for any news outlet to see. Because that’s public realm. All they have to do is be sitting at their computers to see, “Hey, so-and-so just filed a petition for divorce. This is when they got married. This is when they got separated. Oh, I can see from here that they had a prenup.” As a family law practitioner, that is something I have to consider if I’m representing people that are of interest to the public.
How do you handle it?
You explain to your clients, and their publicists, agents, entertainment attorneys and business managers, “Look, everything that happens in this is going to be public, and we’ll try to keep it as vanilla as we can. Again, if we can work stuff out quietly and privately, then it won’t be public. But if we file a declaration from you saying how horrible your ex is, and how he or she drinks, takes excess drugs, uses prostitutes, whatever, those quotes are going to be in a TMZ, or Radar, or People magazine online article within hours. So you have to be careful. While you definitely want to prevail in whatever the issue is in your lawsuit, you also need to protect your family and kids—if you have them—and you need to protect your significant other. Because you’re in this together. Sometimes that person is the goose that lays the golden egg, and if you put something out there that’s going to destroy their career, you could find it coming back to bite you.”
Let’s talk about Marriage Story. Did Laura Dern’s Nora Fanshaw remind you of you?
No, she didn’t. Her office did a little bit, and her clothes did a little bit—although Laura Dern has a more gorgeous body than me. I did speak with Laura Dern and with Noah Baumbach, who wrote and directed the movie. I think Nora was supposed to be more of a compilation of attorneys, and some of them may be more aggressive and less resolution-oriented than I hope my reputation is.
If I have to say who reminded me of me, it would’ve been the Alan Alda character.
With or without the cats?
Without the cats, and with a better pair of glasses that he could find more readily. But a lot of those quotes are things I have said: “Nobody wins in divorce.” In the end, I think what he said resonated—I hope—for people watching the movie.
It’s something we don’t often talk about in society—going through this process. I have so many people call me and say, “Well, I’ve never been through this before, so I don’t know how it works,” and I say, “Why would you know how it works? Let’s educate you, and once you have a little bit more information about the process, I think it won’t be quite as scary, although it still may be heartbreaking.” It’s one of those things that until it’s happening to you, you usually don’t think about it.
In our 2004 Rising Stars article, we mention the tattoo of a star you have above the right ankle. Any tattoos since?
Nothing since. Now I have a 17-year-old, who’s a senior in high school, and his dad and I have told him that he needs to wait until he’s 18 before he gets one. So that’s the battle I’m waging now.
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