Once upon a time in the Kingdom of the Courthouse, a once happy couple found themselves quarreling over a fine golden pie that had long sustained them both.
Unable to agree on how to slice it, they each summoned the wisest counselors in the land – learned lawyers, skilled in the ancient arts of argument, obfuscation, and delay.
The counselors set to work with great diligence and solemnity. They measured the pie from every angle. They called forth appraisers to weigh its crust, accountants to tally its fillings, and experts to debate the proper angle of the knife and fairness of every cut.
Bills, of course, were dispatched with admirable regularity.
Months turned into seasons. The pie itself, left sitting on the royal counter, began to shrink – slowly at first, then with increasing appetite – as duplicate household costs, mounting interest, market shifts, and the steady accumulation of fees and expenses all took their toll.
At long last, the parties and their counselors gathered once more at the round table. They looked down and discovered, to their astonishment, that they were now locked in a most ferocious battle… over a handful of crumbs.
And so it goes in many a contested divorce: while everyone argued over who deserved the larger piece, the pie itself had quietly disappeared.
The moral of the story?
It is rarely a question of who gets the biggest piece. The real question is how much pie will be left once the arguing finally stops.
The Pie Is Not Waiting on a Shelf
Most divorce cases involve a concept that is simple in theory and surprisingly complicated in practice: there is a marital estate, and it must be divided.
I often describe the marital estate in mediation as a pie. And, like any real pie, there are only so many slices to go around.
What the parties – and occasionally even their lawyers – lose sight of is that the pie is not sitting safely in a display case while everyone decides how to cut it. It is sitting on the counter, and it is quietly shrinking.
Not dramatically. Not all at once. But month by month, motion by motion, hearing by hearing.
Two households must now be maintained where one existed before. Shared expenses become duplicated. Debts continue to accrue. Assets fluctuate with the market. And the cost of the process itself – attorney’s fees, expert fees, depositions, and the overhead of keeping a contested case alive – becomes a line item no one budgeted for.
None of this is a secret. What still surprises me, however, is how often it gets ignored in the heat of the fight.
The Math Nobody Wants to Do
Here is the quiet problem at the center of many contested divorces: people negotiate percentages while ignoring that the denominator is shrinking.
A party may spend months and significant money fighting for 60% instead of 50%. They may even win. But if the estate has declined materially in the meantime, they have secured a larger share of a much smaller number. The math does not always favor the victor.
I once mediated a case where a couple began with a roughly $800,000 marital estate. After eighteen months of bitter litigation, legal fees, duplicated living expenses, and asset depreciation had consumed nearly $300,000. By the time they reached my table, they were fighting over who deserved what percentage of what was left. Both walked away with far less than an earlier 50-50 settlement would have produced.
The courthouse is not a bakery. There is no second pie coming out of the oven.
What Good Lawyers Already Know
None of this is a criticism of the lawyers who appear before me. The best ones understand this dynamic intuitively. A significant part of their job – one that is rarely acknowledged – is not just advancing their client’s position, but helping the client see when the cost of winning an issue exceeds the value of the issue itself.
That is genuinely hard counsel to give. It requires a client who is ready to hear it. And it is infinitely easier to deliver before the pie is half gone.
Of course, there are cases where principled litigation is unavoidable – particularly when assets are being hidden, one party is being taken advantage of, or safety is at stake. Even then, the shrinking pie phenomenon still applies. The bigger the fight, the less there is to divide.
The Question I Ask at the Table
In mediation, I sometimes put it this way:
“We can spend our time deciding who gets 60% and who gets 40%. Or we can decide how much pie will still be here when we’re done.”
That simple shift – from division to preservation – often becomes the turning point. It moves the conversation away from “who is right?” and toward “is this worth what it will cost to keep fighting about it?”
Mediation doesn’t make the pie bigger. It stops the shrinking – and gives the parties a chance to step out of the cycle of expense and delay while there is still something meaningful left to divide.
The Pie Will Be Sliced
One way or another, the marital estate gets divided. That part is not in question.
The only question that actually matters is how much of it will still be there when the division occurs.
The parties who ask that question early tend to divide more – and regret less.
The ones who ask it late divide less, and spend far more getting there.
And the ones who never ask it at all? Well, they usually end up exactly where the fable says they do – still arguing about percentages, staring at a pie that is a fraction of what it once was, and wondering where it all went.
Closing Thoughts: Focus On Solutions. Save the Pie!
The shrinking pie analogy is not a theory. It is something I watched play out repeatedly from the bench, and something I see in mediation on a regular basis. Cases that resolve early almost always produce better outcomes. The ones that grind on rarely do.
Good lawyers know this. The challenge is getting clients to understand it before the damage is done. This conversation is almost always easier to have at the beginning of a case than at the end – and it is one that I am glad to help facilitate.
Having served as a family court judge and now working full time as a mediator, my goal is to help parties reach that understanding while there is still something meaningful left to divide. When the right groundwork is laid and both sides come to the table prepared to resolve rather than litigate, cases settle more cleanly and efficiently.
If your case involves a contested marital estate, or any situation where delay is quietly costing your client more than they realize, mediation is worth considering sooner rather than later.
If the math is quietly working against your client, I am here to help.
