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.

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.