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FAMILY LAW & DIVORCE

About Me

I don't consider myself a "divorce lawyer", and I actually handle only a few divorce cases. I have chosen not to get involved in most of these cases. The cases I do take, I take because something about them attracts me. I try to limit even the number of these interesting cases I take on. Routinely, I refuse to take divorce cases and refer them to "divorce lawyers" or to mediation. This puts me in a position to speak very frankly about the appalling financial aspects of the divorce process. I want to urge you to read the following before you get involved in a divorce case. Reading this and understanding it might save you a lot of aggravation and a ton of money.

Strange as it may seem, the divorce process is not focused on what went wrong in the marital relationship, who is responsible for the end of the marriage, or who was at fault. Typically courts spend only minutes on the "ground" for divorce-- the legal reason why the parties are entitled to be divorced-- but they spend hours and hours of both pre-trial and trial time dividing up the parties' money. Generally, what the divorce process is about is sorting out what should happen to the couple's money after the divorce is final. This means that while the parties' grievances about the marriage relationship will be addressed in only the most perfunctory fashion, those grievances will lurk in the background and be projected onto their disputes about money. Put another way, although it will look like the parties are fighting about their money or that their pretrial battles in Court are about their present financial circumstances, don't be fooled by this. What you're seeing is only the most patent part of the dispute. The underlying part, the part that may really be animating the litigation, is the unresolved grievances, the hurt feelings, the remaining anger, the lingering disappointments about the failed marriage. These underlying parts are what fuels the litigation. They're what run up the huge lawyer bills. They're the most important, and frequently the most unconscious part of the divorce process.

Think about it this way: if dividing up your money were only about fairness, you could figure out what your total assets were and divide by 2. You'd get one half; your spouse, the other. You could do this on the back of a cocktail napkin. But you probably won't do this at the start of the divorce proceeding because you probably want something more from the process, something that resolves your marital grievances or assigns responsibility and consequences for the end of the marriage, something that compensates you or punishes your spouse for the end of the marriage. Unfortunately, these are not things the divorce process is designed to provide. Your search for these things will, nevertheless, ultimately lead you to hiring a lawyer to obtain them.

When you attempt to hire a lawyer, the first thing you learn is that lawyers want to receive a retainer before taking on your divorce case. If you divide the amount of the retainer by the hourly rate of the lawyer, the quotient is the number of lawyer hours you are purchasing with your retainer. The retainer does NOT estimate how many hours it will really take to resolve the case. If you're not careful, the retainer may, in fact, be fully exhausted before you receive any tangible benefit from the initial payment you made, and you'll be being billed for additional, large sums of money. This occurs frequently.

Why does this happen? The answer is obvious but not frequently noticed. There is a large dollar cost for every single disagreement between the parties. In every disagreement, because both sides' lawyers must participate and must be paid for their time, there is a cost for attempting to resolve every single disagreement. Put simply, if your lawyer spends 2 hours on paperwork and meetings with you and phone calls (all of which will be billed to you), and your spouse's lawyer spends the same amount of time, you and your spouse are immediately 4 hours x the lawyers' hourly rates poorer. You have no real idea how quickly 2 hours of lawyer time can be spent and how little it may accomplish. You are instantly poorer by the cost of the argument. The money to pay for the argument is coming from the same pot, i.e. the couples' gross assets, that the ultimate settlement of the case will have to come from. The decrease in your assets is the cost of your arguments; this cost must be paid. And the chances are quite good that in the course of the litigation there will be numerous such arguments and numerous such costs.

If you and your spouse went out and bought a new Saab for each of the lawyers (make mine a red convertible), and then sat down at your kitchen table and worked out the remaining money, you'd end up with precisely what you are going to have as a settlement of the case after you pay for the cost of your arguments. Unfortunately, while the divorce is pending, most divorce litigants are not consciously aware that their arguments are decreasing their assets by buying lawyers new cars. They think instead that they are fighting for what is only fair to them and that the expense is at the end of the day their spouse's fault.

To some degree, this "what is only fair" may not even be a party's own idea and may not originate with that party. It is often the result of lawyers' or friends' saying that the party is entitled to more and that s/he should not accept something that is being offered, because "you can do much better and are entitled to more." This argument often turns to anecdotes about people who ended up with spectacular settlements.

If dividing up the partites' assets were just a business proposition, the prudent client might ask what it would cost to get the better, fairer deal and determine if the expenditure were worth it. But remember, sadly, this isn't just a business proposition. It's a divorce. And the emotional motivations for the argument are most likely to outweigh cost considerations. And these emotional motivations may ultimately determine what course of action the party undertakes. Sometimes lawyers add fuel to these emotional distractions. It's a rare lawyer indeed who dissuades a client from undertaking expensive litigation or who restrains the flow of the case.

Unfortunately, emotionally cloudy decision making can only go on for so long. After a while, whatever funds could originally have be used to settle the case, have been spent on lawyering, and the parties are left to make an even more painful distribution of the assets than was possible before they bought the litigation. That's when most cases settle: when the parties finally see how much they've hurt their potential settlement by arguing and realize that they can't afford it to get any worse. Sadly, the assets to be divided have by then been reduced by the cost of the parties' arguments. The result is all too often to blame the lawyers and/or the ex-spouse for the poorer settlement.

How do you solve this very difficult problem? How do you keep from squandering your funds on fighting? I have only two ideas:

1. You can be conscious of the cost of your arguments and govern your requests for litigation accordingly. If you like, you can use appropriate counseling assistance to address any unresolved emotional issues. You won't make the mistake of thinking that the litigation can heal or resolve anything in the relationship. The divorce will not bring you "closure." A divorce in which conscious decisions are made about what issues to pursue and how to pursue them (these are client decisions) uses traditional litigation but insulates the litigation strategy from the distortions the parties' projections cause. The emotional issues are more directly addressed in counseling; they aren't permitted to empty your bank account into your lawyers' pockets.

2. You can go into mediation and resolve the divorce issues. This will probably save you the cost of arguments, or at the very least, greatly reduce it. To have this approach work, it is essential that you both really do want to settle the entire matter and that you both really are willing to be flexible about what you will accept as a settlement. Put another way, mediation will work when both parties' priorities are reaching an agreement. Don't waste your time and money by going into mediation if you will not change your position about what should happen, or if you are using the mediation merely to stall or to avoid an eventual courthouse reckoning. Mediation cannot work if either of the parties really doesn't want to settle the issues.

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