So just what really happened?

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We all know pretty well why we're here. The basics aren't tough. Frank and Jamie McCourt are getting divorced, and there's a question as to whether Jamie is entitled to half the value of the Los Angeles Dodgers. There's a document--a relatively simple one, really--that says everything titled in Frank's name shall be his in the context of a division of assets. Divorce counts. Seems simple enough, right?

But there's also something tacked onto that document. A couple things, actually. One, Exhibit A to the agreement, specifies assets that belong to Frank. Now, the main document itself sort of says that Exhibit isn't important. That it's for "courtesy" only. So, since the Dodgers are unquestionably in Frank's name, what's so hard about this? Problem is, as you likely know, two different agreements were signed, the difference being the content of Exhibit A.

One version says the Dodgers are Frank's. He wins, keeps the team, game over. The other version specifically excludes the Dodgers from Frank's separate property*. She wins, the Dodgers are the couple's community property*, the club must be sold, game over.

*You understand intuitively what these concepts mean. You do. But you wouldn't if you were on the stand. 

That's pretty much why we're here. And, eventually, Judge Gordon will either agree with Frank and uphold the first version of Exhibit A, or he'll agree with Jamie and toss the thing entirely. The reasons and mechanics that go into that decision are fodder for a different discussion, one we'll have here before trial resumes Monday. That's the legal part. What I'm after here is answering the question titling this post: so just what really happened?

I'm pretty well convinced on this point. Frank and Jamie meant to separate their assets prior to moving to California. The quickest, simplest way to preserve the protections they'd long ago given their homes was to allocate them to Jamie and the team to Frank. To simply cordon off the homes and leave the Dodgers in the community pot would likely have been ineffective. So they meant to split things as Frank's Exhibit A does it.

Never in the course of the creation and execution of the document did Jamie McCourt express concern that the businesses were being legally allocated solely to Frank. Indeed, she wanted that. I strongly believe that the first three copies of the document the couple signed on March 31, 2004 were precisely what they wanted. At that time, anyway. They were walked through that copy--which contained Frank's Exhibit A--and signed it. That day, Jamie was shown three seemingly identical copies, which she signed believing they contained the same Exhibit A. She had no reason not to: that was what she wanted.

Over the course of the next several months and years, Jamie was provided the documents multiple times for various reasons. The couple also ratified it in writing upon the acquisition of additional homes. As far as I've seen, at no point prior to the onset of significant marital strife did Jamie ever cause a fuss about the words or effect of the MPA and its exhibits. She knew what it said, and--as someone who practiced family law for several years--what it did. Really.

Perhaps nothing is more telling about Jamie's understanding of the MPA than what she did not do at the outset of the divorce litigation. She did not say--because she did not know--that documents had been switched. She did not say--because she did not know--that the Exhibit A attached to the MPA was materially different from what she had meant to sign. But, if she believed that the only MPA she knew of was not confusing, not misleading, but flat-out contradictory to what she agreed to, wouldn't she have screamed that from Day One?

She didn't. In her filing for divorce, she claimed "it was never [her] understanding" that the MPA would divest her of any interest in the Dodgers in the event of divorce. She argued that she "had simply been told [she] needed to sign the document" upon the couple's move to California, and didn't consider its effect. I am not asserting that Jamie signed the MPA with divorce in mind. In fact, I'll bet she didn't. And I'm not asserting she doesn't have several viable arguments against the MPA, including, among other things, the lack of independent counsel and the incredible difficulty Frank is having credibly establishing his version of the timeline.

I am asserting, though, that if Jamie had any idea that the only Exhibit A she knew of at the moment of her filing was completely wrong, opposite to what she believed she signed, that she would have let us know right away. She didn't know that fact of the switch until much later. But she also didn't react in a way suggesting she even suspected the substance of the switch.

I want to be very clear here. I am not saying that, in the absence of a settlement, Frank will win. Heck, I'm not even saying he necessarily should. Jamie has several viable arguments against the enforcement of Frank's version of the MPA, not the least of which being the lack of independent representation and the seeming ineffectiveness of the counsel she had. Further, there are strong public policy reasons supporting an award to her of a substantial portion of the couple's assets, even if Frank's MPA is upheld. Finally, it cannot be ignored that Frank is having a devil of a time proving the facts that would lead to his victory.

This afternoon, in this post, I'm not saying Frank has the best legal position. If this was a jury trial, after what we saw this week, I'd put Jamie very far in the lead. For three of the signed copies, the Exhibit A was switched out after the fact, and Jamie was neither asked for permission in advance nor explicitly informed of the switch afterward. That's really bad, and I very much understand why many folks have called this for Jamie already.

And maybe they're right. This afternoon, though, in this post, I'm only saying I believe that the facts as they actually occurred--without regard for whether they can be legally established--are closer to Frank's telling than Jamie's. Eleven months after we started this litigation, I can't disregard that Jamie's initial response to Exhibit A just doesn't mesh with her contention that she agreed to something completely opposite.

Very bad things happened with respect to the creation and execution of the MPA. For a variety of reasons, both legal and in the interest of plain old fairness, Jamie has a strong case. Divorce, if it was considered at all in the context of the MPA, was not given much thought by either party. But if the question is, "So just what really happened," I strongly believe the answer is: the McCourts knowingly negotiated, approved of, and signed an agreement explicitly making the Dodgers Frank's, and the couple's residential real estate Jamie's.

Maybe they didn't know of alternatives. Maybe they didn't contemplate its effects. Maybe they were inadequately and ineffectively represented. Maybe the facts that can be proven aren't strong enough to carry the day. All of these things really do matter, and they are why this has lasted as long as it has. But, given the couple's history, the life cycle of the MPA, and how the parties always interpreted it, I can't conclude anything other than the conflicting version of Exhibit A was a complete accident, unknown and unrelied upon by Jamie until after the divorce was filed, when it became the strongest of her weapons against the document she reviewed and signed March 31.

Assuming the McCourts can't come to an agreement this weekend, the trial will resume Monday morning. And assuming the couple can't come to an agreement some time in the next three months, Judge Gordon will rule that Frank's version of the MPA holds, or that the entire thing is ineffective. When evaluating the case, Judge Gordon must and will consider much more than what he believes to be the true factual history of the MPA. For today, though, and in the narrowed scope of this discussion, I don't. I believe that the only textual version of the MPA Jamie understood to exist in 2004 was the only one she even suspected to exist when she filed for divorce last Fall.
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