CAN OUR FAMILY AFFORD A DIVORCE? …..
AND TO WHOM SHOULD WE LISTEN????
By: Paula H. Noe, Esquire
What should we tell our friends, our clients, our own families about divorce or modification during these challenging economic times? We all know that everyone is affected by the current financial crisis, and that includes families who desire to, and/or should be considering, a divorce or a modification. Articles and news stories have abounded recently about families that cannot afford to move forward with divorce and are even still living together (literally ‘cornered’ in the marital home, complete with the stress and anxiety and rising levels of domestic abuse and substance abuse). After all, how can people voluntarily undertake the huge life-changer of divorce when they don’t know what the future holds for any of the family members in terms of jobs, asset values or retirement plans?
I suggest we should tell them what we, as professionals, have experienced and learned over the years; we should explain to them the choices they have to make - before, during and after the divorce or modification process.
As a family law attorney, I am ethically bound, I believe, to let any potential client know what options are available to him or her in Massachusetts divorce or modification. After all, comment 5 to Rule 1.4(b) of the Massachusetts Rules of Professional Responsibility states about “Alternative Dispute Resolution”: “There will be circumstances in which a lawyer should advise a client concerning the advantages and disadvantages of available dispute resolution options in order to permit the client to make informed decisions concerning the representation.” Thus, I make sure all clients understand what I see ahead in the different scenarios – from ‘kitchen-table’ negotiation through litigation, including dispute resolution (ADR – alternative dispute resolution – is, in my opinion, itself an out-moded phrase, since dispute resolution is no longer ‘alternative’, but is very mainstream now) and settlement alternatives, including mediation and collaborative practice. And, while I am sure that my preferences are clear, especially since I advocate zealously for fair and equitable solutions made by the during-divorce-family for the after-divorce-family, I am careful to provide information about each scenario so that the divorcing parties are able to make educated and informed decisions about the future of their family. As we should know, we can offer no ‘one size fits all’ solution to families, so we have the obligation to provide them with the best information we have to allow them to make their decisions.
Part of the information I pass on to these people who are wanting and/or needing to change their family life involves the cost, in terms of finances, in terms of energy and emotion and in terms of damages. When we estimate, to the best of our ability, the cost-benefit analysis with these folks, we must, of necessity, address their understandable question” “What will it cost?” The easy answer, of course, doesn’t exist, for lots of reasons, but we do have to give these folks the information we do have, emphasizing, of course, that the financial cost (as important as it is and will always be) is one of many potential ‘costs’ of divorce; the emotional and familial ‘costs’, as well as the possible delays and complications, can also be prohibitively expensive!
As far as the money goes, I think it is fair to give clients a couple of answers, suggesting that the research shows a few interesting trends.
In 2005, Money magazine (July 2005, p 48), in its article entitled, “Getting a Divorce? Why It Pays to Play Nice’, states that “Collaboration can save each spouse a bundle in legal fees,” estimating that a ‘traditional’ divorce would cost about $35,000 and a Collaborative divorce would cost about $16,000. These estimates, based upon ‘Attorney estimates”, are not backed up with any further data, and it remains unclear to me, whether these numbers reflect the TOTAL cost of divorce. In other words, let’s know if these numbers we give to clients are the cost to one spouse or are they the cost to the couple? Does the number also include fees for any ‘allied’ professionals (i.e., mental health for the parties or the children, financial people for the division of assets, appraisers for the real estate or businesses)? This Money article raises these questions for me, so I am sure to point this out to the clients in front of me.
Also, David Hoffman, of Boston Law Collaborative, has provided us with some further and more current information about the cost of divorce. In his article, “Colliding Worlds of Dispute Resolution: Towards a Unified Field Theory of ADR”, (2008 Dispute Resolution Journal, p. 11), using a methodology which attempts to estimate, while taking into account the information that is often missing (i.e., cost of other professionals, including the other attorney) the combined cost of a divorce, he says, ‘One of the surprises in the data was the much lower cost of divorce mediation as compared with the other processes, except (not surprisingly) coaching from the sidelines.’ p. 30. Indeed, the cost of the divorce to the couples involved in the 199 cases in this study ranges from a low of $4,549 for the ‘coaching from the sidelines’ case to the high of $77,746 for the ‘litigation’ case. Without adjusting for any other factors, the Mediated Divorce cases cost $6,613, the Collaborative Practice Divorce cases cost $19,500, the Cooperative Process Divorce cases cost $26,500, the Negotiation/Litigotiation cases cost $26,830. Again, some of the data may be missing from these analyses; we do not know, for example, how much mediating families paid for their individual attorneys or other ‘allied professionals’ in addition to paying the mediator.
In addition, David notes, ‘What is more surprising is that the couples who found themselves in litigation were among the least wealthy clients.’ P. 29. I agree with David that this is startling information and wonder about the implication. The lesson might be: let’s make sure we are giving correct and uniform information to all potential clients, regardless of their financial situations; all processes should still be available to everyone.
Another important point for us professionals to remember is that, although most divorce and modification cases settle sometime before trial, the case that starts in litigation mode (by which I mean the adversarial model of ‘file first, talk later’) will be more expensive for the clients than the divorce that starts with negotiation or dispute resolution clearly perceived and articulated to be the preference. This does make sense, since we should understand that getting everyone around the settlement table is much more complicated and even chaotic once the battlefield has been entered in discovery or court or otherwise; as we know, harmful words, whether written or spoken, can cause damage that might need to be repaired. If, indeed, the family has chosen a mediation or dispute resolution process of any kind at the beginning, then they save money. If, on the other hand, the case has started collaboratively or in mediation or some other form of dispute resolution, and then moves to litigation, I believe the clients will save money over the ‘traditional’ litigation case, since, hopefully, many issues have been already decided during the dispute resolution phase, so that the litigation is narrowed and can, we assume, be resolved speedily.
Although, of course, my perspective does remain limited to my experience as a family law attorney, I do believe strongly that all of us professionals who do our work with divorcing families (or families in any kind of crisis) must continue to share our information about the cost of the divorce or crisis. And, of course, we must really consider all of the ‘costs’; thus, we need to keep learning from each other. Our mental health colleagues are so vital in this process, especially in these tough times; in collaborative cases, the practice of using a collaboratively-trained ‘divorce coach’ or ‘divorce facilitator’ or ‘child specialist’ is becoming increasingly routine, and the clients and the lawyers all benefit from the valuable guidance they can gain from this added dimension. In addition, our collaboratively-trained financial experts provide us with so much important information, without which the clients cannot make the necessary informed decisions about the future of their family. When suggesting to a client that the use of these collaborative professionals is a vital piece of their collaborative divorce (often in response to their ‘We can’t afford all of these people” statement), I make sure to emphasize that, although the choice does belong to the parties, my advice is that ‘all of these people’ can actually cut the costs of a divorce, since the collaborative process runs more smoothly and more efficiently with these other professionals involved.
Families in crisis collect information from various sources before making decisions regarding their choices, from their neighbor’s cousin and their friends and relatives and also from the professionals to whom they turn for guidance. It behooves us to provide ethical and practical advice regarding the cost, perhaps by giving these folks a range of options and a range of potential costs, all the while emphasizing that no one can predict the future. I also suggest that we should be gathering our own data, that we should review our own past cases, in order to categorize and quantify how much our clients have spent on divorce. Educating the potential clients about the costs will, of course, inform their decisions, and should be part of our conversations.
**with special thanks to David Hoffman, for his comments and insights on this article.