Is It Worth It?

Deciding Whether to Divorce Through Litigation

by Michael Heath

When a person is injured in a slip-and-fall, they often seek out a lawyer to sue the person or entity they believe is responsible. After information is gathered but before a suit is filed, the lawyer makes certain determinations over the strength of the case, what the transaction costs would be if it were to go to court, and what the claim is worth. Might the defendant be willing to settle? What is the range that the plaintiff may find acceptable? These points are very important to the lawyer who is compensated on a contingency basis. In other words, they only see payment if the case is won or a favorable settlement is successfully negotiated. Overall, a risk assessment is made. A discussion between client and legal counsel that includes these considerations is necessary before a suit moves ahead.

Considering the Cost of Litigating a Divorce

Litigation is an inefficient process. The pre-trial procedure of discovery, i.e., gathering information to build a case, is time-consuming and expensive. Subpoenas, interrogatories, motions, requests for documents, and depositions accrue billable hours. The process stokes simmering animosities. Legal fees can grow and grow as lawyers attempt to negotiate a settlement. If an agreement is not reached, there will be even more attorney costs as the case moves to the courtroom.

Do spouses consider the financial costs of litigation before retaining a lawyer? Hopefully, they do. Is there a financial discussion with legal counsel? There most likely is. The lawyer will inform the client of the retainer required to get started and the hourly rate beyond that. A guesstimated cost range may be offered based on the information given. The problem is that the attorney does not have a crystal ball telling how the case will evolve. Divorce is very emotional, and a case can become prolonged causing joint savings and home equity to be depleted. The unfortunate truth is that while there is money to cover legal fees there is little incentive for either lawyer to bring the case to conclusion. When the money runs out both sides are then forced to accept a settlement neither side is satisfied with. The results are a classic case of lose-lose.

Divorce Litigation for Better or Worse

Mediation or collaborative divorce are good alternatives to litigation but like they say, it takes two to tango. Both sides must be on board with the approach or it will never work. Moreover, certain situations preclude collaboration. Marriages that experience domestic violence, dissipation of assets, or threats of absconding with the children negate any consideration at mediating their dissolution.

Some divorces may be so complex, such as a marriage that involves a business or many investment properties, that the spouses want legal counsel advocating for them. There are others who just like the idea of an unbiased court system making the decisions rather than relying on any mediation process. Litigation certainly has its place in marital break-ups.

Divorce is Not Free  

The financial cost of a divorce varies widely due to each couple’s unique circumstances. Some celebrities spend millions while an unknown couple with no assets end their marriage by filling out paperwork before paying a $300 court fee. If a couple can end their marriage without costly litigation, they should look at the numbers to see if an alternative approach makes more sense.