Every year divorcing couples waste billions of dollars fighting each other in litigation. I use the word “waste” here because the money spent does not produce anything of value. Most of those couples could have obtained better results at much lower cost if they were informed about how the American divorce system really works. This multi-billion dollar legal fee generator is supported by a number of myths divorcing people often embrace when they choose how to divorce. In this post and the six posts to follow I will describe each myth and show you how it shapes your divorce.
Myth # 1: At trial, the judge will divide the property and decide issues of custody and support.
When you hire a lawyer, chances are good that your initial discussions will center on the need to prepare for a trial at which the judge will decide the issues. Although the lawyer will acknowledge that she will try to settle the case, she must prepare for a trial in case the divorce does not settle. This means she must engage in a time consuming process called “discovery” in which she gets to uncover all the facts necessary to conduct a trial. This may include requiring the production of all relevant documents, requiring the other side to answer interrogatories (questions) and possibly taking the deposition of your spouse and other possible witnesses. She may want to employ certain experts to appraise assets, review your spouse’s financial records, review your spouse’s income and employment potential, and testify to your level of living or “lifestyle”. And when your lawyer hires such experts, your spouse’s lawyer probably hires another set of experts to testify how your experts are wrong in their opinions.
It is this discovery process that quickly generates large legal fees. At $300 an hour, a deposition including preparation time and a court reporter fee can easily reach $3000 per party. If each expert is also deposed, fees easily climb into five figures before very long. And each lawyer assures his/her client that there is no choice because if the other side is doing it, so must we.
Reality: 99% of all divorces will be resolved by a negotiated settlement without a trial.
The big surprise occurs when discovery is complete and it is time to get ready for trial. Now great pressure is brought to bear by the judge for the case to be settled. Settlement conferences are scheduled with the judge, or with a mediator with great expectations that the case will settle. Frequently, the judge will let the lawyers know how he/she expects the decisions will go and the lawyers use “what the judge is saying” to get their clients to agree to a settlement. Because a trial will be so expensive, and because the clients are already alarmed by the climbing legal fees, in all but a few cases there is now a settlement.
The sad part of all this is that in most instances the case could have been settled along the same lines in the beginning and avoided the waste of money spent on unnecessary discovery. The information needed for a settlement is but a fraction of the information lawyers seek to protect their positions at trial. Chances are strong that both lawyers knew at the start how the case would be resolved because there are established settlement norms in every jurisdiction, and the lawyers know what they are. Why the clients didn’t know is the question. We will explore this further in the next few posts.