I have written previously about the significant cost savings available through out-of-court divorce solutions such as mediation or Collaborative Law. These potential savings are not merely theoretical. This week, Reuters published a fantastic column by a Massachusetts man who managed to get divorced for less than $1,500 in mediation and legal fees (excluding what his wife paid). This outcome stands in sharp contrast to the high costs of litigated divorce, of which I also provide an example below.
Case #1: Mediated Divorce
The Reuter's column, titled "How I Got Divorced for Less Than $1,500 in Legal Fees," was written by the ex-husband, Tim McLaughlin, and sets out in detail how an inexpensive, respectful divorce can be accomplished. Here is how they did it:
Lesson 1: Hire a mediator
Although McLaughlin and his wife eventually hired attorneys to work on the final details of their separation agreement, they began by seeing a mediator, with whom they "talked about the finances of running two households and worked out a parenting plan for [their] daughter." Because the mediator's hourly rate was shared between them, it was much less expensive than hiring individual attorneys to negotiate the issues.
Lesson 2: Figure out which issues require mediation
McLaughlin and his wife did not use the mediator for all of the issues in their divorce, although they certainly could have. Instead, they primarily relied on the mediator to help them with terms of their custody agreement. They were able to sort out many of the financial issues between themselves, thus saving themselves the expense of hiring a professional to help them through those issues.
Lesson 3: Hire mediation-friendly attorneys
Some attorneys are not comfortable turning over negotiations to their clients. McLaughlin and his wife were able to find attorneys who were comfortable giving them initial advice, leaving the couple free to work out the terms of the agreement, and then drafting the final product based on those terms. (Many mediators, including myself, can also draft the agreement for you.) Thus, the couple made sure they were advised of their individual rights and walked away with a well-drafted separation agreement, without paying their attorneys to be involved unnecessarily throughout the whole decision-making process. This approach also allowed them to take the time to make carefully considered decisions. "[W]e weren't saddled with the pressure of getting something done quickly because of mounting legal fees," McLaughlin writes. Your mediator should be able to provide you with a list of mediation-friendly attorneys in your area.
Lesson 4: Accept that there will be conflict
McLaughlin is careful to point out that although he and his wife were able to save money by cooperating on their divorce, that does not mean the divorce was perfectly smooth. "We had acrimony and some serious bouts of tension," he writes, "but we didn't wreck each other's personal finances with out-of-control legal fees and other costs." This is an important lesson to take to heart: divorce is inherently a difficult process, and there will likely be substantial disagreements along the way. However, that does not mean divorce must be adversarial, and there are ways – including mediation – to get through those difficult times without taking the litigation route.
Lesson 5: Put the children first
To their substantial credit, McLaughlin and his wife recognized something that I wish every divorcing couple with children would recognize: despite their divorce, they need to be able to get along for many more years. Although there were disputes over finances – McLaughlin admits that he would have preferred to receive a greater portion of the couple's retirement funds – preserving their ability to communicate was a critical, albeit intangible, objective for both of them. As McLaughlin eloquently summed up:
Maintaining good relations seems wise, because for at least the next 10 years, we will be relying heavily on each other to run two separate households and support our daughter and all of her activities. It's the crux and irony of any divorce with kids involved.
All divorcing couples in Massachusetts would be well served to read McLaughlin's article before making a decision about how to handle their own divorces, particularly if there are children involved.
Case #2: Litigated Divorce
While there are many examples of divorces with ludicrous legal fees – I once assisted in a case where the couple's combined legal fees exceeded $2 million! – I want to contrast McLaughlin's article with something closer to the typical couple's situation. I do not want to unnecessarily exaggerate the contrast between mediated and litigated divorce costs; the difference is substantial enough just using an average case. I found a great example in the case of Iveta DOLANSKY v. Jan DOLANSKY, No. 12-P-1545 (September 26, 2013). Because this is an unpublished decision, I am not able to provide a link, but here are some highlights of the case (glossing over some of the legal nuances that are likely not of interest to most readers):
- Mr. and Mrs. Dolansky had children, for whom Ms. Dolansky was the primary caretaker.
- Mr. Dolansky earned approximately $78,000 per year. Ms. Dolansky's income consisted exclusively of child support and food stamps.
- The Dolanskys' divorce was decided by trial, pursuant to which the trial judge ordered Mr. Dolansky to pay (1) alimony of $150 per week and (2) $8,400 of Ms. Dolansky's attorney's fees.
- Mr. Dolansky contested both the alimony amount and the award of attorney's fees, and was subsequently found in contempt for failing to pay $6,950 of the amount owed.
- Mr. Dolansky's appeal of both issuess (alimony and legal fees) was denied.
The $8,400 that Mr. Dolansky was ordered to pay was not the wife's entire legal bill, and does not include any of Mr. Dolansky's own legal fees. Thus, McLaughlin's observation that "[a]n average divorce can cost anywhere from $10,000 to $20,000" is perfectly in line with the Dolansky's case. (In the Boston area, the numbers can be much, much higher, and these numbers also do not include the costs of Mr. Dolansky's appeal, which were likely quite substantial.)
Considering the family's finances, this was a cost they simply could not afford; those fees would have been far better spent on their children. It is easy to imagine, also, the long-term damage to the Dolanskys' ability to coparent their children as a result of this protracted, acrimonious litigation.
Similar Facts; Completely Different Outcomes
The contrast between McLaughlin's divorce and the Dolansky case is stunning. In both situations, the couples had children to care for. McLaughlin was actually in a better financial situation – by his own report, he and his wife had roughly equal incomes, and there is no suggestion that either of them received public support. Yet the Dolanskys spent considerably more on their divorce, and that does not even include the damage to their family structure as a result of the litigation!
To be fair, we do not know all the facts about the Dolanskys. Divorce court is appropriate in some cases, and this might have been one of those cases. However, the lesson remains the same: divorce litigation is an expensive, protracted, hostile process that can divert vital funds and emotional energy from other places where they are needed – such as children.
Divorcing couples owe it to themselves, and their children, to at least try to be more like McLaughlin, lest they end up looking more like the Dolanskys.