Why is Divorce Expensive?

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.

Control and Domestic Violence

An interesting discussion arose recently when a woman posed a question about dealing with her fiance's behavior.  She called him "jealous."  What most of us saw in her description, even those who'd never had experience with domestic violence, was control.  That's what domestic violence is about, after all.  It doesn't occur because someone likes to hit people; it occurs because someone wants to control someone else.  It's not just a loss of temper, either.  Most abusers aren't going around beating up their bosses.  Oh, no, they save it for those closest to them - their significant others, their children, sometimes even their parents, especially if the parents are elderly.  People they can control.

Since it's about control, domestic violence isn't always physical.  It can be more insidious than that, mental and emotional abuse that can do more damage than a slap to the face.

In the case of this woman who posed the question about her fiance, she described him as someone who's "always been very jealous."  This man, who she says makes her feel like the most important person in the world, forces her to tell him if she thinks that anyone else besides him is attractive.  He used to ask her if she'd "been being good."  Her fiance won't go to therapy regarding his issues, because he "doesn't believe in it."  He tried it once before and "said it didn't work."  He has called her "whorish."  In the past, when she found someone attractive, he got angry at her and yelled at her.  Most recently, he "got sad" when she found someone else attractive.


His jealousy frustrates her, and this is her response:  "I know that what I'm doing seems wrong and I've volunteered to go to counseling... I don't often think of other men and [my fiance and I] spend almost every minute we don't work together."  Still, the issue flares up every month or so.

Meanwhile, she moved out of her parents' house a year ago because her mom was reading her texts, thereby finding out that she was sexually active at age 20.  This, she deemed "extremely abusive."  Even though her parents insisted that they would not try to break up the couple, this woman was "sure they would have."  Later, the woman says that she told her fiance she left her family and moved to another state "for him."  She's told him she's given him everything she has.  Without her parents' support, she's had to leave school and works two jobs while her fiance completes his degree and works one job.


She believes they'd have no place to go if they broke up.

This is textbook stuff.  I've been working with victims of domestic violence since 1989, and these are the red flags I see:

First, abusers will cut their victims off from their friends and family.  They will convince the victims that their families hate them and won't accept them back, they convince them that their families are conspiring against them.  They make themselves their victims' sole support system.  They take the victims out of school - an education is dangerous.  They stunt their victims' educations and careers to make them more dependent on the abusers.

Then, the control.  This guy wanted to know all of his fiancee's thoughts and punish her for them.  He made her feel wrong for having perfectly normal thoughts.  He has her believing she's somehow evil for looking at or even thinking about another man.  He has made her  uncomfortable in her own skin and has her believing there is something wrong with her; enough that she's willing to go to counseling to fix herself for him.

The name-calling.  And she accepts it as deserved.

The end result is that the victim comes to believe that she needs her abuser and has nowhere to go.  She thinks her family won't take her back.  She has no friends.  Her education is incomplete and her career stunted.  Plus, her brain doesn't work properly and she's a whore.  She needs him.  He's got her trapped.  The thing is, he's got her trapped with lies.  She could go back to her family, to a friend, to a shelter.  She could leave and get out... before getting married, before kids, before it becomes more difficult.

If you are this girl, get out.  If you were this girl, and now you're married, now there are kids, now it's more difficult... get out anyway.  It's never too late.  I once met a woman in her 70s who'd been married for 50 years to an abusive husband before she finally got up the courage and scavenged enough dropped change from the couch cushions to take the bus to the courthouse and file a complaint for domestic violence.

If she can, you can.

If you are a victim of domestic violence, get help.  Call the National Domestic Violence Hotline at 1-800-799-SAFE (7233) or TTY at 1-800-787-3224.

Equitable Distribution and Inheritance

Daphne Speck-Bartynski v. Robert Bartynski - A Discussion

[Unpublished Decision of the Appellate Division - Decided September 25, 2009]

The facts in brief: After twenty-two years of marriage and raising two adult children, the parties divorced on July 23, 2008. At the time of the divorce, the husband earned $115,000 per year and the wife was a full-time homemaker.

The parties entered into a settlement agreement, providing for permanent alimony in the amount of slightly more than $30,000 per year. The parties also agreed to the majority of equitable distribution, including valuations on property, custody, parenting time, and child support. Only one issue with regard to equitable distribution remained.

In 1998, the husband received an inheritance, the majority of which was commingled with marital funds. It was used to purchase investment accounts and the parties' summer home. After the complaint for divorce was filed, the wife used a portion of the funds to purchase her post-marital home, an "advance" on equitable distribution according to the settlement agreement. In addition, a portion was lent to the wife's brother, some deposited in a bank account, and $120,000 was used by the wife to pay down the mortgage on the marital home.

The payment of the mortgage spurred the husband to curtail the wife's access to the funds by requiring two signatures on all large withdrawals. He sought to preserve the funds for the parties' children and grandchildren.

The issue before the trial court was the percentage of property allocated to each of the parties. Following a hearing, the court ruled that the fair market value of the summer home, the money used to pay off the marital home mortgage, and the balance of the loan owed by the wife's brother were to be divided equally.

The other assets purchased with the inheritance funds, the two investment accounts, the bank account, and the fair market value of the wife's post-marital home, would be divided with 2/3 going to the husband and 1/3 going to the wife. It is from this portion of the court's decision that the wife appealed.

The issues: Should the assets purchased with the commingled inheritance funds have been divided equally?

The court's holding: The Appellate Division affirmed the trial court's decision.

The general rule is that an inheritance is not subject to equitable distribution. Had the husband kept these funds separate from marital funds, they would have been his alone at the time of divorce. However, because the funds were commingled with marital monies, they do become subject to equitable distribution. That said, the trial court is permitted to allocate some weighted amount of distribution, as it did here.

The trial court has broad discretion regarding the division of marital assets, and its determination cannot be touched by an appellate court as long as the trial court could have reasonably reached its result from the evidence presented. The appellate courts cannot disturb the division just because it is unequal, unless a legal or factual mistake has been made. It is the moving party, in this case the wife, who bears the burden of proving an abuse of discretion.

In this case, the trial judge considered all of the necessary statutory elements with regard to equitable distribution, as well as the evidence, and could have reasonably placed significance on the husband's much larger contribution to marital assets through inheritance, as well as his intention to limit the wife's use of those assets as demonstrated by the change to the signature requirement. There was nothing permitting the Appellate Division to interfere.

The end result: The distribution of assets remained as the trial judge had directed.

What does all of this mean to you? While an inheritance belongs solely to the heir for purposes of equitable distribution, if funds are commingled, they can be distributed between the parties. However, the non-heir party cannot necessarily expect that he or she will receive a full 50% of a commingled inheritance.

Appellate Review, Business Ownership, and Support

Catherine Romania v. Nicholas Mattera - A Discussion

[Unpublished Decision of the Appellate Division - Decided September 4, 2009]

The facts in brief: After 17 years of marriage, Romania filed a complaint for divorce on May 10, 1999. The parties had five children, aged fourteen, eleven, nine, seven, and four at the time the complaint was filed.

The divorce was contentious, including domestic violence complaints, municipal court complaints for interference with custody and harassment, and claims of malicious prosecution. The parties retained a psychologist and psychiatrist to assist in determining the best custody and visitation arrangement for the children, one of whom described the children's situation as living in a "war zone."

The trial regarding financial issues ancillary to the divorce was conducted separately after a failed attempt at mediation.

Both parties were attorneys. After the children were born, Romania became a partner in Mattera’s firm, later leaving to work part-time in another firm for an hourly wage. Mattera continued to run his own law firm. He did not keep the finances separate, instead paying household bills and expenses directly from the firm’s account and intermingling the funds.

The firm’s income fluctuated throughout the years. Romania retained two experts to determine the actual disposable income from the business for the purpose of evaluating alimony and child support, and Mattera one.

The parties stipulated to the value of the marital home and that Romania’s share of Mattera’s $1.8 million dollar law firm was $627,000. The parties also had several investment accounts.

The trial court ordered that Mattera pay permanent alimony, child support for the five children, health insurance for the children, and two thirds of the college expenses. The court also ordered an equal division of assets, subject to several debits and credits. One such credit was to Romania for one half of $330,000, the sum withdrawn by Mattera from his profit-sharing account. Mattera was not granted credit for funds Romania withdrew from accounts which was used to pay for major repairs on the marital residence and litigation expenses. The trial court explained that it considered Mattera’s share of those withdrawals to be Mattera’s contributio to Romania’s litigation expenses, in effect ordering that Mattera pay some of Romania’s counsel fees. It also acknowledged that the funds used to repair the residence increased its value, thereby increasing the amount Mattera and Romania would both receive with regard to equitable distribution. The court also directed additional credits for Romania, including one half of the tax she paid on joint assets for several years and one half of Mattera’s vehicle. A credit was given to Mattera to reimburse him the full payment he made to an escrow account. Both parties were denied other requested credits.

The court also determined custody and visitation.

The issues: Was the court biased, having an impact on it’s discretionary determinations regarding custody and parenting time, alimony, child support, and equitable distribution?

The court's holding: Affirmed in part, and remanded for reconsideration of alimony, child support, and college expenses.

The trial court had expressed concern that the children were being damaged by the actions and hostility of both parties, simply reflecting the observations of all the professionals involved in the custody recommendations and determination. Beyond that, the judge was obligated to, and did, make findings of credibility.

Because the judgment of the trial court concerning custody and parenting time was based on findings of fact adequately supported by the credible evidence, and because the review of the Appellate Division is limited to solely determining whether the findings of fact could reasonably have been reached based on that evidence, it could not alter the judgment. The Appellate Division is forbidden from undertaking an independent analysis of the trial court record or making it’s own credibility findings.

The standard for appellate review of a trial judge’s determinations regarding equitable distribution is one of “abuse of discretion.” The Appellate Division cannot “disturb decisions that have reasonable support in the record as a whole and are consistent with the law.” The question is whether the “division is clearly unfair or unjustly distorted by a misconception of law or findings of fact that are contrary to the evidence.” The Appellate Division cannot, in essence, hold a new trial, and so the decision will be affirmed even if the court would not have made the same division of assets as the trial judge.

The denial of additional credits to Mattera was not an abuse of discretion resulting in an unfair division of assets, according to the Appellate Division, given the financial circumstances of the parties and the likelihood that Romania would have been awarded pretrial counsel fees.

It was also not an abuse of discretion when the trial court refused to award Romania interest on her share of Mattera’s law practice, since during that same period of time, she has use of the marital residence and significant assets, a portion of which were later awarded to Mattera. The use of those assets were used in lieu of the interest she demanded.

The standard used by the Appellate Division to review alimony and child support awards is also “abuse of discretion.” If the decision has reasonable support in the record, the Appellate Division cannot touch it.

The Appellate Division found that the trial court’s determination that Mattera’s net income approximated $778,000 per year had no support in the record. The trial court relied upon the testimony of Mattera’s accountant, who assumed unreasonably and contrary to the history of the firm’s finances, that the law firm’s receipts and expenses would remain constant throughout the year. The Appellate Division also found that the evidence would permit a finding of net business revenue higher than that reported, but that business revenue cannot be equated with net income available to Mattera. The Appellate Division therefore found that both support orders were based upon a mistaken foundation, requiring remand to the trial court for an additional determination.

The end result: The Appellate Division upheld most of the judgment of the trial court, and so equitable distribution and custody were not altered. The issues that were determined by Mattera’s disposable income, those of child support, alimony, and college payments, were sent back to the trial court for a new trial.

What does all of this mean to you? Although you may not be happy with the trial court determinations regarding your divorce, the Appellate Division is very limited in its ability to make changes. The higher courts cannot re-try your case, or make credibility determinations, they can only determine whether, under the standards dictated by the specific issue in question, the trial court made such a large error that the decision must be overturned.

In addition, if you or your spouse owns a business, even when the business and personal funds and expenses are intermingled, the income of the business is not equivalent to the income of the person, and cannot be used outright for determination of support amounts.

Equitable Distribution and Child Support

Nancy M. Hreha-Coloccia v. Leonard Coloccia - A Discussion

[Unpublished Decision of the Appellate Division - Decided September 2, 2009]

The facts in brief: After twenty years of marriage, the parties were divorced on March 3, 2008. Two daughters were born of the marriage, aged 18 and 20 as of the date of the Appellate Division's opinion.

Before the parties were married, the husband owned a house in Clifton, that he bought while the parties were dating. He put down a deposit of $60,000 to $80,000, with no financial contribution from the wife. The parties lived in that house from their marriage in October of 1987, until 1999, when they sold the house to purchase a home for $206,000 in Branchville, NJ.

Shortly after the parties were married, the wife discovered that the husband owed $10,000 to the IRS. She paid part of this debt from settlement proceeds from a car accident. Later, in 2003, the husband failed to report a withdrawal from his IRA on his tax returns, causing another tax liability, which was then paid from joint funds. In 2005 and 2006, the wife filed separate income tax returns; the husband did not file tax returns.

At some point during the marriage, a TV satellite company damaged the roof of the marital home, resulting in a $3,800 settlement to the parties. When the husband's support obligation had not yet commenced, the wife used $200 of those funds to make other repairs to the house and the balance to pay the mortgage, taxes, and shelter expenses for herself and the parties' daughters in September of 2005.

From August 2007 to February 2008, the older daughter lived with the husband.

After trial, the judge required both parties to file joint state and federal income tax returns for the years 2005 - 2007. In addition, he set the husband's child support arrears at $3,793.67, but gave the husband credit of $910 for the months when the older daughter resided with him, $1,800 for his 50% interest in the settlement with the TV satellite company, and $1,000 for the husband's 50% interest in two joint bank accounts, reducing the amount of arrears to $83.67.

The issues: Was the judge's ruling with respect to equitable distribution of the marital home, awarding her 45% of the equity, plain error? Did the judge improperly reduce the child support arrears due from the husband pursuant to a pendente lite order? Could the court compel the parties to file joint tax returns for 2007 and amended joint tax returns for 2005 and 2006, or was this plain error?

The court's holding: Affirmed in part and reversed in part.

The judge's ruling with regard to the equitable distribution of the marital home should not be disturbed. The standard of plain error requires that the trial judge's decision remain undisturbed if there is sufficient credible evidence on the record to support it. Property allocation, specifically, is reviewed under an abuse of discretion standard, requiring a finding that the decision was made without rational explanation, inexplicably departed from established policies, or rested on an impermissible basis.

Here, because the husband used substantial premarital assets to purchase the Clifton home, and the proceeds from the sale of the Clifton home were used to purchase the Branchville home, although it was nine years before the parties were divorced, it was reasonable for the trial court to award her a smaller portion of the equity in the home than the husband, where she made no financial contribution to the purchase of the Clifton home.

The judge partially improperly reduced the husband's obligation for child support arrears. Because the New Jersey statutes prohibit the retroactive modification of child support obligations, the $910 credit for the period of time the parties' older daughter lived with the father was impermissible. The other two credits were permissible as payments from the husband's assets toward his child support obligation.

It was plain error for the court to order the filing of joint tax returns, in light of the husband's history of underestimating his income to the IRS, and the fact that the wife had already filed tax returns for those years, it would be unfair to force the wife to risk exposure to another tax liability because of the husband's failure to file and pay.

The end result: The wife received 45% of the equity in the marital home as equitable distribution of that asset. The husband's child support arrears obligation was adjusted to $993.67. The wife was permitted to file her own separate 2007 tax return and to refrain from filing amended joint tax returns for 2005 and 2006.

What does all of this mean to you? If you contribute the entirety, or possibly even large majority, of the funds to purchase the marital home, it is likely that you can and will receive a partial credit for those funds during equitable distribution.

If you are obligated to pay child support, but the custody arrangement alters and your child or children reside, even temporarily, primarily with you, you should file an application in court to amend the child support order. Should you wait, the child support obligation cannot be amended retroactively, and you will still be obligated to pay the full amount of support despite the change in residence.

Although the court will often order parties to file joint tax returns to maximize their potential refund or minimize their potential tax liability, the court will not force you to risk a greater liability due to the wrongdoing of your spouse, if proof exists.