The Other Costs of a Litigated Divorce

Collaborative lawyers are pretty good about explaining the options a person has in starting on a divorce. The old standard approach is litigation.  The main alternative is Collaborative Law.  Another approach, which is used by some people, is to represent themselves, which is risky.  Other posts go into more detail about the dangers of representing yourself.  For now, I would like to focus on the costs of litigation.

The most obvious cost of litigation is the attorneys' fees and other costs of a court battle.  Dueling experts, depositions, extensive discovery and attorney's fees for all that plus multiple hearings can be very expensive, but there are other costs that you may not have considered.

1.  Loss of control over the outcome.  In litigation, the parties completely lose control of the terms of the divorce when they turn over the decision-making to a judge.  Each side gets to make their own sales pitch for what they want, but the judge can choose one or the other or neither of the proposals.  Even if the parties negotiate along the way, they usually confine their discussions to options allowed under standard guidelines or procedures.

In Collaborative Law, the parties start talking from the beginning and set out their own goals and objectives from the first joint meeting.  They are free to be as creative as they want and they are the ones who decide on all the terms for themselves.

2.  Damage to relationships.  Where there are children involved, there is often unreasonable fighting in litigated cases.  The parties tend to approach things from a win-lose or all or nothing mentality.  In order to "win" custody or significant time with the kids, parents will often say terrible things about each other.  Both sides become angrier and it's hard to patch up the damaged relationships.

In Collaboration, the parties work with a neutral mental health professional (MHP) who helps the parties communicate better, including learning how to listen respectfully and effectively to each other, a skill that most people are not born with.  Also, the parties don't get into blaming each other in order to advance their own agenda.  Instead, they discover that they can both be winners and both can have great relationships with the children by cooperating with each other.

3.  Stress and anger.  Litigated divorces are frustrating and the parties are put into situations where they believe they are both competing to "win" the same thing, whether it is financial or child-related.  The process is almost always stressful and tiring.  Everyone will get mad at some point at the others because of what is said or done in the process, and the way people cope with that is by fighting back, usually escalating the battles.

Collaborative divorces can also be stressful, but are generally less stressful because the parties have a feeling of having more control over their destinies.  Also, we use the neutral MHP to help people constructively deal with the stresses they experience.  There is less anger in Collaborative cases because we work hard on being respectful and civil in all our actions and words in the process.

4.  Time.  A litigated divorce will usually take a year or more here in Tarrant County.  There are often multiple hearings, depositions and other discovery procedures, and months of waiting for a final trial date.  Most cases go to mediation before trial, but that is usually at least 6 to 9 months after the case is filed.

In Collaborative cases, the parties start talking and working together from the outset.  Although each case is different, they can be completed in 3 to 6 months unless there are a lot of complications.  If they need to take more time to work through things, however, the parties don't have to rush to finish on a court's timetable. The parties control their own time schedules.

5.  Loss of expert support.  In litigation, you are basically on your own.  Some people work with a counselor, but most don't (even though they probably should).  Few people in litigation have a financial advisor who helps them find the best financial solutions in a divorce.

In Collaborative divorces,  we normally use a neutral mental health professional who does not do counseling for the parties, but who helps the parties with communication skills and helps everyone behave well and work effectively with each other.  The MHP also is a great help for the attorneys and alerts us if someone is having a problem at a meeting or if there are some sensitive issues we need to prepare for.  We also rely on a neutral financial professional who gathers and organizes information and helps the parties understand the tax considerations in the issues discussed. 

If you are considering a divorce, or you are definitely facing one, think about these costs and talk to a trained Collaborative lawyer about your options.  Remember, if you go to a family lawyer to discuss Collaborative Law, and the lawyer works to talk you out of using Collaborative Law, go get a second opinion.  The first lawyer simply may not really know about Collaborative Law.