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There is an old joke that goes, “How much does a good divorce lawyer cost?” The answer: “Far less than a bad one.” The joke is funny because it’s true, but it’s true on more levels than most people realize.
The implication of the joke is that in addition to paying the bad divorce attorney’s fees, you also lose money because your spouse gets most of your assets in the divorce. What’s less funny, but no less true, is that a bad divorce lawyer can cost you more because they don’t keep your divorce from going to trial. Divorce trials are expensive, and in this blog post, we are going to talk about the specifics of why that is.
But first, let’s get back to the notion of the bad lawyer. There are two ways a bad divorce lawyer can cost you money by dragging you into a trial: either the attorney is not a skilled negotiator who can help you make a favorable settlement agreement, or they are deliberately “churning your file”—stirring up conflict in the case to generate higher fees for themselves. Either way, you don’t get a good result. Understanding why divorce trials cost so much can help you choose a good divorce attorney.
Think of divorce as driving on a toll road. The longer you drive, the more you are going to have to pay. With divorce, though, the tolls tend to increase rapidly toward the end of the trip. Here’s why.
At the beginning of the divorce process, the goal is that you and your spouse will reach settlement on the issues in your divorce: child custody and parenting time, child support, spousal maintenance, and property division. You and your spouse hold a lot of power in your hands: you can work out an agreement with yourselves or with the help of your attorneys. If you do, the court can finalize your divorce with a simple hearing after your attorneys draw up the agreement. In essence, you’ve taken an early off-ramp from the toll road.
If you don’t exit, the terrain gets steeper and rockier. Your attorneys have to conduct discovery to find out about every aspect of your spouse’s claims, because a trial is now a possibility. Discovery may involve requests for documents, pages of questions for your spouse to answer, depositions (in-person interviews under oath) and more. Not only does your attorney have to draft discovery requests to send to opposing counsel, they have to field similar requests to you from your spouse’s attorney. They then have to review the materials you have been asked to provide and prepare your answers.
They also have to review your spouse’s answers and materials. If your spouse fails to provide the information requested, your attorney may have to draft a motion to compel their response, and then go to court to argue the motion. All of this takes many hours—and thousands of dollars in attorney fees.
Often, spouses will reach settlement after or even during the discovery process, when the facts about their assets and conduct during the marriage are on the table. This is another exit ramp. Because of the time and effort put into discovery, it is more costly than an earlier settlement would have been. But it is still less than the cost of a trial.
If divorcing spouses can’t reach settlement even after discovery, the next step is to proceed to trial. A good divorce attorney always prepares for the possibility of trial even as they work diligently toward a good settlement for their client. But at this point, with trial an increasing likelihood, preparation intensifies—and so does the cost.
If you are going to trial, you want your attorney to be thoroughly prepared to make your case. That involves many more hours of intense preparation: reviewing the file, including financial information; preparing exhibit lists and the exhibits themselves in support of your case; preparing the list of witnesses who will testify on your behalf, interviewing those witnesses, and preparing them for their testimony. Then there are pre-trial motions and affidavits; preparing proposed findings for the court; and preparing the attorney’s actual arguments in support of those proposed findings. All of this is before the trial itself begins.
Depending on the complexity of the disputed issues, there may be multiple witnesses and dozens of exhibits. If there are significant assets or business interests as part of the marital property, experts may be needed to provide testimony about the value of those assets. Not only does your attorney need to spend time preparing to question these experts on the stand, but the experts themselves charge significant fees for their services.
Then there is the trial itself, which will probably take at least several hours and could take days—during all of which your attorney must bill for their time. It becomes easy to see how a divorce trial can cost each divorcing spouse tens of thousands of dollars.
Here’s why understanding the financial cost of a divorce trial can help you choose a good divorce attorney. Many people go into divorce thinking that a trial is the only way they will get justice and their “day in court.” They look for a “pit bull” attorney who promises them the court battle they think they want.
But the reality is not only that a trial costs more in legal fees, it usually doesn’t provide the satisfaction you want. You may not get to tell the story you want to tell, and if you do, the court may still view the situation differently than you. You have less control over the outcome than in a settlement you negotiate, and you will be stuck with that outcome.
So why does anybody ever go to trial in a divorce? Sometimes, it is simply necessary. If one spouse is not being honest in settlement negotiations, or poses a danger to the couple’s children, a trial may be necessary to achieve a just result. But about 95% of the time, it is possible with the help of an experienced divorce attorney, to settle your case at a much lower cost—emotionally and financially.