I’ve spent the past five years in the trenches of your hideous divorces, sifting through artifacts of broken relationships in my graveyard of an office. I’ve seen the good, the bad, and a lot of ugly in marriages.
Divorce attorneys generally will caution you that every case is different. While that’s technically true, most divorce cases — and divorce lawyers — follow the same few (fascinating) patterns.
If you’re considering divorce or in the midst of one, I am hoping these tips help you make some of the chaos inside your world less expensive and more manageable, if at all possible:
1. Be strategic how (and when) you communicate with your divorce lawyer.
I know it, you know it, and everyone’s heard it before. Along with a mortgage and college for your kids, divorce can be one of the most expensive purchases of your life.
Why is that? What if my spouse and I agree on some stuff?
Let’s say you and your spouse each retain divorce lawyers, and those lawyers bill in hourly increments (tenths of an hour, quarters of an hour, etc.). That means that every call, every e-mail, every time they so much as think about your case, that timer is running — and it adds up quickly.
For example, at my firm, five minutes of an attorney doing absolutely anything for your case will cost you between $25 and $45.
Your divorce attorney uses paralegals? Great! But that could still be $10 to $20 for those five minutes of their time. And yes, this includes you calling or e-mailing just the paralegal to try to circumvent your attorney in an effort to save money. You’re actually costing yourself more here, because the paralegal still has to run anything you’re asking by the attorney before answering you, and has to tell the attorney afterwards what they told you. (Consider saving yourself a buck and instead e-mailing them both any question more substantive than “Where do I sign?” or “Has the court given us any update?”)
Ok, and what if your spouse then also retains a divorce attorney because you got one? Now you have a second timer running for a second person’s thoughts about your ping pong tournament of a breakup, even if it is just to kick a proposal back and forth between offices.
But what if your spouse doesn’t get a divorce lawyer?
Still double that number because your lawyer now has to try to educate — without advising — your spouse about legal principles and local requirements of which they are probably unaware.
Worse yet, your attorney might even have to try to reason with your spouse who is convinced they are being cheated in the divorce settlement because their favorite celebrity or internet billionaire got more money in their divorce. (Spoiler alert: Someone’s divorce settlement out of your state likely means nothing to a judge’s ruling in your state. Settlements are private agreements, anyway. Judges don’t decide them.)
And if your spouse files in court before your case has settled? Hello contested divorce trial for which your lawyer must now begin preparing — and billing. I’ve seen couples spend their kids’ college funds and take out second and third mortgages on their homes to be able to pay to fight with each other. It’s heart-breaking.
2. Not all divorces need to be expensive.
Contrast the above scenarios with an image of you and your spouse sipping coffee at your kitchen table.
You have each spoken to divorce lawyers, you know your rights and theirs, and you both want to get your fair share of the remainder of the life you have built together. You chatter about who keeps (or sells) the house, who gets time with the kids on which days, who keeps which furniture, and who keeps which bank accounts.
You scribble down what you both agree to, and your lawyer draws up a quick agreement memorializing the terms for you both to review and sign. Maybe your spouse (or their attorney) wants to change a term or two, but the agreement is quick and cheap to finalize and sign.
A couple weeks later, you each have a copy of your notarized agreement for safekeeping. Your divorce lawyer drafts up the formal uncontested divorce papers, sends them to the court for processing, and you each receive a copy of the signed divorce decree in the mail.
Just like that, without any court appearances or big, ugly, drawn out fights over your retirement accounts, you are (cheaply) divorced.
You are grateful for not having to appear in court or answer invasive personal questions on public record, and the whole process cost you a few thousand bucks at most – maybe even a few hundred.
The primary difference between these two hypotheticals is the cooperation between you and your spouse that comes from rational, cost-effective, civilized communication.
3. The secret to a cheap divorce is courtesy, communication, and cooperation.
I’m paid to snoop through the remnants of your dying marriage, and that often involves reading your text messages and e-mails, looking through your family photographs, watching your home movies, and listening to arguments you recorded with your spouse.
Through years of these investigations, I’ve noticed a pattern. If you’re facing the possibility of a divorce, I can take a guess at what happened.
I’ve seen the same pattern unfold hundreds of times.
I’m betting that you and your spouse entered the marriage hoping for the best, excited about your future life together as one cohesive pair, as married couples (hopefully) do.
I read the potential that began in your early text messages. I see the intimacy, the kindness, the consideration.
Then I start to see innocent misunderstandings here and there.
Those innocent misunderstandings start to snowball, grow, and fester, and not-so-suddenly your relationship begins to deteriorate.
Sometimes the communication becomes kinder later, and the meanness circles back around. One fight ends with who is bringing home dinner and picking up the kids, then a new fight begins two days later with unwashed dishes, forgotten homework, and laundry on the floor instead of the hamper again.
Other times, that initial tenderness never returns, and those misunderstandings spiral into hostile accusations, name-calling, finger-pointing, and stonewalling.
Not only will this type of hostile communication kill what’s left of your relationship, but it won’t let your divorce be laid to rest, either.
It fuels vindictive, expensive e-mail exchanges between divorce lawyers and a refusal to negotiate, regardless of the money hemorrhaging from what’s left of your financial comforts.
Regardless of whether you hate your spouse, don’t want to let them go, or feel somewhere in between, you are only hurting yourself by fighting them throughout the divorce process.
It doesn’t have to be that way.
The cheapest divorces I see are ones where both parties have set aside their differences and are willing to rationally negotiate. They are polite to each other (doesn’t have to be genuine!), they are openly communicative with each other, and they are both willing to compromise to get the case settled efficiently and smoothly.
Those cases will not make your divorce lawyer much money, but they lead to fewer headaches for everyone involved and are always a breath of fresh air. They end peacefully.
Cooperation is key in uncontested divorces. Both you and your spouse have to be willing to behave this way. If one of you decides to be difficult or stop talking, negotiations fall apart, and you are both more likely to have to pay for a contested court battle unless or until that person backs down.
4. Your divorce lawyer is not your therapist.
If you’re like most of my firm’s clients, you don’t realize that your wallet bleeds every time we think about your case.
Yes, your midnight e-mails cost you. Yes, your calls to check that we received each of your midnight e-mails cost you. And yes, us strategizing about who will have to reach out to you to calm you down also costs you. Each thing you panic that your spouse did, is doing, or might do costs you.
I get it.
You hired an expert, a professional to guide you through this process.
It feels good to unload some of the stress and grief you’re trying to process on them. They’re paid to listen and to tell you that things will be alright.
You’re trying to make sense of what’s left of the life you used to have. It isn’t fair that this happened, and now your life is in a tizzy.
You are scared of the unknowns in your pending divorce. You don’t know how much more the divorce process is going to cost or when the fighting will finally end and you can walk away, divorced and free to move on to new relationships.
You need for your fears to be validated.
You want to feel protected, safe, and heard.
Best of all, just about everything you tell your divorce attorney is protected by attorney-client privilege, right? (Pssst, ask your attorney what is excluded from this privilege in your state. Know the privilege limitations.)
But your attorney is not a trained therapist. They’re a trained attorney. They know divorce law, not mental health.
They know how to protect you, not how to make you feel better.
And their hourly rate is often double, triple, or quadruple that of a therapist, anyway.
Start with the free resources in your life, your loved ones: family, friends, and any other trusted confidants.
I know you don’t want to bog down the people you care about, but they are in your life because they love you, and you need their support during this process.
Talk to your divorce lawyer about the rules regarding potential witnesses and what information you cannot or should not share with others who could be deposed during your divorce. (Also ask your lawyer about the rules for written disclosures, like text messages and journals.) Then, within the confines of your lawyer’s guidance, start letting your feelings out.
And then if you need additional help or a third party neutral perspective protected by practitioner-client privilege, find yourself an inexpensive local therapist if you can afford to do so. (Bonus points if your health insurance covers this!)
5. …but your lawyer needs to know what not-so-great things you do.
Your lawyer won’t judge you for hiding cameras all around your house and in your spouse’s car, recording heated conversations with your spouse without their knowledge, cheating on your spouse on Tinder or Grindr, posting kinky personal ads on Craigslist about your adult diapering fetish, using your small business as your personal piggy bank to fund your gambling/alcohol/porn addictions, passing out stoned in your child’s bedroom during your visitation time, or beating your spouse for decades.
Your attorney has seen it all. They see this chaos, and worse, daily.
But they need to know what you have done — and what you still are doing, even if it is illegal (like several of these examples could be in your state).
Your lawyer is paid to make your side of the story as strong as it possibly can be.
If there’s any detail of your life that makes you appear like anything less than THE GREATEST PERSON WHO HAS EVER LIVED, your divorce attorney needs to know about it. There is no, “But this shouldn’t be relevant,” or, “If I don’t say anything, the other side won’t find it either.”
Think about it: you are paying them to keep you out of jail and playing by the rules. Their job is to make your case as strong as possible. If they have to do damage control after-the-fact repeatedly because you delayed telling them something important, it costs you. If they tell you to stop doing something and you keep doing it anyway, it costs you. If you lie to them and your spouse’s divorce attorney pushes on it during the divorce case, it costs you.
They can’t protect you if they don’t know your rights are being unintentionally waived. For example, in my state, adultery is (as of the time of writing this article) illegal. Divorce lawyers here frequently object to accusations of adultery — often when their clients do have sexual intercourse with people other than their spouses, or when their clients have other forms of sexual activity that may not technically be adultery but come close — so that those accusations are not used against clients during the divorce. If your attorney doesn’t know about that time you definitely did cheat and therefore doesn’t timely object to the accusation, it could have severe consequences against your case.
Your lawyer needs to know the deck of cards in your hand, even if it means they will tell you to stop doing what you are doing. You hired an expert – use their expertise to guide your decision-making. I cannot emphasize this enough.
If your divorce attorney catches you lying to them, they may fire you as a client. Then you have to find a new divorce attorney, pay that new attorney, and get that new attorney up to speed on your life and your case. That takes time, and time means more money spent.
And if that doesn’t discourage you, here’s another disadvantage: divorce attorneys often do not accept new clients who have already burned through multiple prior attorneys. That’s a big, huge, blinking red flag for them.
They are more likely to decline representing you altogether — or if they do take your case, they may give you a much higher retainer requirement than first-time or second-time attorney-seekers because they are expecting you to be a problematic client. While the retainer level has no effect on the actual cost of the case (more on that below in #10), for most of us it would be significantly harder to come up with $10,000 to $25,000+ for an initial retainer account than $5,000 or less for one.
6. You can fire your divorce attorney.
If you don’t like the job your current divorce attorney is doing and don’t feel they are a good fit for your case anymore, or if they are more expensive than you initially realized and you cannot afford them anymore, you have the option of firing them.
Much like finding a good therapist, your divorce lawyer’s feelings won’t be hurt if you break up with them. As I mentioned above, they can fire you, too, if they don’t think they are able to adequately represent you. It really isn’t personal on their end; it’s just business.
Make sure you find a divorce attorney you are comfortable talking to, whose advice you plan to follow, who answers your questions fully, and who you can afford. Some people want hand-holders while others prefer a tough-love personality. Some people don’t care what their divorce costs, while most want to keep it as affordable as possible. Whatever blend of personality, strategy, and cost you want, there are lots of divorce attorneys who will be able to meet your needs well.
Shop around before you commit to a divorce lawyer. The cost of consultation appointment fees may be a tiny fraction of the total cost of what you’ll spend with this person by the time your divorce is finalized. A free consultation does not guarantee a cheap divorce or good quality legal advice, nor does a consultation with a less experienced lawyer necessarily mean that they could not get you an equally fantastic divorce outcome to what their extremely experienced mentors or competition could.
7. Aggressive divorce lawyers are not always the answer.
We get a lot of callers seeking “aggressive” divorce attorneys. But what does that mean?
What they usually want is a divorce attorney who instigates action quickly and does not appear meek. I consider this assertive, not necessarily aggressive.
Divorce attorneys who represent themselves as aggressive tend to enjoy litigation. They thrive in the courtroom and love the thrill of a “kill” in court. They perform, sometimes downright peacocking for their clients’ entertainment. It’s an act and a show.
Contrast this with attorneys who excel at communication and cooperation. These are the attorneys that can get you a great settlement that’ll spare you a formal court trial, which can save you thousands of dollars. These attorneys can be equally as assertive as the aggressive ones and equally as confident and competent — sometimes even more so.
Ask each the attorney you interview about their approach. Do they tend to act as more of an aggressor or a negotiator? How does their personality fall along this spectrum? Are they patient or do they prefer hairy court battles rather than settling upfront?
In divorce law, there aren’t a lot of clearcut wins and losses.
Judges don’t want to hear your divorce case. Most divorce cases never make it to trial, settling anywhere from the beginning of the process to minutes before the divorce lawyers step into court. This is a good thing.
In my experience, clients pay more for the aggressors than negotiators because aggressors are more likely to take the case to court, particularly when both divorce attorneys are aggressors who want to go head-to-head against each other. Attorney tempers can be fierce, especially against colleagues who are equally eager to fight.
The cheapest contested divorce cases I see are those where both attorneys are negotiators who know full well that going to court would cost their clients far more than it would win for them. They make reasonable proposals and pass a set of polarized terms back and forth until the differences are whittled away to a fair compromise for both parties. No trial, no fuss, no muss, and a lot less stress for everyone involved.
8. You need to know what you want.
Clients often do not know what they want out of a case. They haven’t thought that far ahead because of the emotional turmoil that got them to this point, or they have already moved on and are happily enthralled in a new dating relationship outside of their not-yet-dissolved marriage, or they flip-flop and change their minds daily.
They just want to feel like they won whatever they get. But what does winning mean? How do you win a breakup?
Most times, you don’t.
Family law revolves around compromise.
As early as possible once you realize a divorce is imminent, start thinking about what is most important to you. Do you want primary custody of your kids? Do you want more visitation time with them? Do you want to keep the dog? Do you want lifelong alimony? Do you want to not pay alimony? Do you want to keep your retirement accounts free-and-clear? Do you want the mahogany master bedroom set you bought three months before your spouse moved out?
Talk to attorneys and find out what your rights are as a whole, and what your rights are for the issues you prioritize. Find out what is realistic and what is not, depending on the laws where you live.
You probably don’t need a divorce lawyer who will behave like a jerk about every issue in the case. Not only is that more likely to land you in an expensive trial, but you and your lawyer look uncooperative to the judge, which can negatively skew the judge’s opinion of you and hurt the chances of them ruling in your favor on the issues you actually care about if your case goes to trial.
Instead, pick the top few issues you care the most about, and let your divorce attorney know where you are willing to compromise. That gives you wiggle room for negotiations, which can limit or eliminate any time you will need to spend in — and pay for — court.
9. You need to start budgeting.
If you are not already in the super amazing habit of budgeting, it is time to start. This applies to both during and after the divorce.
Maybe you’re obsessed with money like I now am and compulsively budgeted for your family. Maybe you had such an enormous income that planning what your family spent it on wasn’t necessary. Maybe your family racked up some debt not watching where the money was going, or because there wasn’t enough money to begin with. Maybe you’re somewhere in the middle and kinda-sorta planned but lost interest because you’re busy. Maybe money is stressful and you avoided thinking about it altogether.
However you felt about budgets before, you need to budget now.
Before, your income was supporting an entire household. Now, it has to support two households – as well as attorneys until the divorce is final, and maybe even for some time after to make sure everything runs smoothly.
You now have fewer resources than you did in marriage, so you will have to be strategic with how you allocate your savings, salary, retirement, and any payments you’re receiving from or paying to your spouse (such as alimony or child support).
You will also have to ensure you are living within your new means. Bonus points if you can live much below your new means to allow you to start building or rebuild a nest egg for yourself. It may be very difficult, if not impossible, to salvage or start building that nest egg during the divorce process itself.
10. Make sure you understand your lawyer’s fee agreement and retainer system.
Read the fee agreement your divorce lawyer gives you before signing it.
Yes, all of it.
Yes, even though it’s multiple pages of boring, single-spaced text.
A fee agreement is a contract between you and your divorce lawyer. Ask questions about anything that is not completely crystal clear.
Make sure you know what kinds of billable work incur what charges. Ask if other attorneys or staff might be performing work on your case under the instruction of your attorney, and if so, what their billing rates (or ranges) are.
Make sure you know what legal activity the fee agreement is actually for, and when you would need a new fee agreement if your case escalates. It is never a good day when a client thinks they signed on for a divorce lawyer to represent them in court, only to learn that their lawyer only agreed to negotiate outside of court, and now they need to hire someone else for the in-court phase.
Make sure you know the process to close your file if you change your mind about hiring this lawyer.
Make sure you know how often you will be billed, how they will send you invoices, what forms of payment they accept, and how often you will need to pay them.
People frequently misunderstand retainers.
A retainer is money that you pre-pay to your attorney to fund their work on your case. You pay an initial retainer to get your lawyer started, then you make additional payments as they bill for their work on your case.
Retainers work similarly to debit accounts. You put money into them to start, then you deduct money from them as needed. Retainers have no effect on the actual cost of your case.
Retainers are just a pre-payment to draw from, not a bill for services performed. Once services are performed, their billed amounts are deduced from the retainer balance. You then pay to bring the retainer balance back up to the required level each month, week, two weeks, or whatever terms you agreed to when you hired your lawyer. When the case ends, you get the leftover retainer funds back.
Retainers make you pay to play.
Much like the gasoline (or electricity) in your car, you cannot promise your car that you will refill its empty tank after it allows you to drive, and you cannot expect your divorce attorney to do work on your case with an empty retainer. After all, she or he cannot pay their bills on your promises that you really will fork over cash after the case is over, regardless of your intentions.
You’ve seen those television commercials about wrongful deaths, medical malpractice, etc., that tell you to call a free phone number to talk with a lawyer right away, and assure you that you won’t pay unless they win your case? Those are called “contingency” cases, meaning the lawyers get an agreed-upon percentage of any lump sum they win for you.
Divorce law doesn’t work that way. Any lump sum being awarded from your divorce is coming from your marital estate (the money and stuff you and your spouse amassed during your marriage) — there’s no giant settlement from an insurance company.
If you sell your marital home and split the proceeds with your spouse, would you really want both of your attorneys taking one-third (or more) of your profit? What if you owed more on your house than it was currently worth and had to take a loss when it was sold? Then how would you pay your lawyer?
And what about when you rollover half of your 401(k) to your spouse, or coordinate with your company for your spouse to receive a portion of your pension checks every month after you retire? Would you want your divorce lawyer getting a chunk of those payments? There are methods in place to divide certain retirement accounts between former spouses tax-penalty-free, but I (thankfully) have yet to come across any mechanism for an attorney to take a cut.
Besides, not all cases result in exchanges of money at all. You and your spouse could agree to waive your shares of each others’ 401(k) accounts, pensions, and separate bank accounts. How would your attorney get paid then?
You also wouldn’t want an unethical divorce attorney encouraging you to make choices that would result in their fees being higher from a greater sum of money being “won” from your spouse. You would probably notice if your attorney was billing your retainer for things you disagreed with, and you could challenge those charges to get that money returned to you, but you might not know if the advice your attorney gave you was serving their interests more than yours in the end.
The only thing actually increasing your divorce attorney’s fees is the time you authorize them to spend on your case. If at any time you need to stop playing the game, you can tell your attorney to agree to whatever your spouse wants and walk away.
Bottom line: make sure you have a clear understanding of the true cost of your divorce lawyer and that you can realistically afford their services.
Regardless of what you hear from friends or read online (including here), your divorce will be personal and will be unique to your life and your circumstances, just like your marriage was, and just like your next relationships and marriage(s) will be.
There’s never going to be a one-size-fits-all solution to any breakup, but I hope that you can implement ways to make yours a little more manageable for your mental and financial health.