I just spoke with a friend this morning whose parents divorced several years ago, and she relayed a joke her father told her:
Why is divorce so expensive?
Because it's worth it!
It is funny; the truth often is. He's right, generally speaking. Once a couple has exhausted all other avenues of recourse and still comes to the conclusion that it's time to end the marriage, then the divorce is worth it, even though it is indeed an expensive endeavor. In the end, if things can be handled well by the parties involved, everyone is better off for it, the couple, their families, their children. Living apart can be better than living in strife. Many, many years ago I had a friend whose parents actually became best friends after they divorced. Now, that's not typical, of course, but it's an indication of how much better off they were once the stresses of the relationship were removed.
But what makes a divorce so expensive?
Ah, that's what you really want to know, isn't it? Why is it so expensive? There are a lot of factors involved.
We as attorneys cannot ethically do a divorce on a contingency basis the way we can a personal injury matter. That means we're not actually allowed to let you pay us based on how much money you get out of the settlement or trial. We're directed by the rules of ethics to charge an hourly rate. There's your first factor: your attorney's hourly rate. Generally speaking, hourly fees are commensurate with experience and expertise. That's not to say that a new young lawyer with a lower rate isn't a terrific attorney; they absolutely can be. Just do your research before choosing an attorney. As much as it may hurt, it's better to base your decision on referrals from other pleased clients and your own comfort level with the attorney than on the fees alone. In the end, a good attorney could save you thousands down the road.
Another factor is the extent of complications present in your life. A divorce involving a custody dispute is necessarily more expensive than one in which the parties agree on custody and visitation or one that doesn't involve children at all. A divorce with two W-2 wage earners is less expensive than one in which a business owner is involved and the business needs to be evaluated for equitable distribution.
The other factors, though, are more difficult to anticipate.
One is the attorney your spouse chooses. If the attorneys can work well together to reach a settlement beneficial to both parties, your divorce will be less expensive than if one party chooses an attorney who is overly litigious, gives bad advice to his client, or is simply unfamiliar with the law.
And the rest is up to you and your spouse. The expense of a divorce depends heavily on how much you are willing to compromise. To keep it as inexpensive as possible, determine from the outset what is most important to you and what is least important. Tell your attorney these things, so that he or she can strategize accordingly.
My experience has run the gamut, from the least expensive divorce that was completed in two court appearances to the most expensive that involved a full three-week trial, domestic violence hearings, several arrests and the resulting municipal court appearances, expert witnesses, business evaluations, and involvement with children's services.
An anecdote:
Very early in my career, when I was just a few months out of my clerkship, I was handed a file by my boss. The case was near the end, and I appeared in court with our client at a settlement conference at which we settled every issue... except one. It was a bill from the parties' accountant, for $500. At the time, my boss was billing my time at $125/hour, so four hours of my time would total the same $500. My client, the marriage's breadwinner, was adamant that he would not pay it. His wife honestly didn't have the money to pay it herself. It was marital debt. While I will never permit my client to buckle under on an issue when I think he's wrong to do so and I think he's being unfair to himself, in this instance my advice was to just pay the bill and cut his losses. He refused. He'd rather pay me than the bill. It was only when my boss, an experienced attorney who'd been practicing more than 50 years, agreed with me, that our client finally agreed.
A stance like that is what will make your divorce most exorbitant. If it's something worth fighting for, like your children, by all means fight. Just choose your battles wisely. Not all divorces have to be exceptionally expensive. The ones that are should be the ones that are worth it.
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I have a question for you. Are more people using mediation in divorce? And what role do lawyers play in a divorce involving mediators?
ReplyDeleteThis could be an interesting blog post.
The courts *have* been making a move toward encouraging mediation, at least here in NJ. The judges have honestly always pushed for the parties to settle amicably, and remind the parties even at their very first court appearance - the Case Management Conference - that it's always better for the parties to settle than to go to trial and have the judge make the call on how everything works out. After all, who knows the parties' lives better than the couple themselves? Plus, the judge's hands are somewhat tied by statute and precedent, whereas the parties can use more creative provisions in their agreements, to suit their circumstances.
ReplyDeleteIn NJ, all cases involving custody and parenting are offered the use of free custody mediation through the court. The program is generally very successful unless there's a real and unusual custody issue. Attorneys are not permitted into the custody mediation room, so we usually don't even attend court that day. Honestly, it keeps the whole process less contentious than it might otherwise be and it is less expensive for the parties that way. Once the parties come to an agreement, that's sent to the attorneys and we have three days to dispute it before it goes into effect as a custody/visitation order. That way, if your client feels like s/he was pushed into it, things can still be remedied.
For financial issues, divorces are sent to what's called an Early Settlement Panel - a panel of two or three attorneys who hear the arguments of both parties' counsel and make settlement recommendations. If the panel is unsuccessful in settling the case, the matter is sent to a financial mediator. For that, only the first three hours are free; the rest is paid by the parties.
There are divorcing couples who go to mediators first, before contacting attorneys. The mediators are often very good and in cases with large financial issues, this can be a wonderful and cost-effective way of getting a good portion of the case settled. However, the parties should always have the settlement reviewed by an attorney, even just to receive advice as to what he or she may be giving up and may otherwise be entitled to. I've had one such case where the parties had a lot of retirement accounts and they worked out the division of assets before coming to see attorneys. That helped a lot, though it didn't settle all issues - my client had some health issues that affected alimony and insurance. My job in that divorce, except for the equitable distribution, was largely the same as in any other case, but engaging in mediation first did save the parties some time and expense, always a good thing.
Just as an aside, as a protection, any cases involving domestic violence restraining orders cannot engage in any form of court-ordered mediation, and while I've never run across the issue, I'd imagine that pre-divorce mediators would turn those cases away as well. The restraining order precludes that sort of contact.
Wow! Thanks for filling me in. That helped a lot.
ReplyDeleteI'm not planning on using one myself, but I've always been interested in mediation as a whole. And what the role of a mediator actually is.
Thanks.