The Basics of Divorce: Litigation

Every couple who files for divorce has the right to meet before a judge.  Whether going before a judge is the best direction for you and your soon-to-be ex-spouse is a conversation you may want to consider having with them before you head down this path.  As mentioned, there are many different ways a couple can choose to end their marriage.  Going the route of litigation is one of a handful of different ways you can choose to end one chapter of your life and start another. Here are some things to consider if you choose to move forward in your divorce through the litigation system with attorneys on retainer. 

It has been stated that most divorces are settled out of the courtroom, about 95%.  The truth of the matter is that the courts would like for you to stay out of the courtroom and they give you ample time to work things out between you and your soon-to-be-ex or between the attorneys both you and your spouse have hired.  In the State of Washington, you get a full year before your trial date.  You have 11 months to complete some form of ADR or Alternative Dispute Resolution, such as mediation or arbitration.  Part of this timeline is to give more than enough time for the couple to work through some of the details.  

When you choose to end your marriage in the courtroom before a judge, the truth is that no one really wins.  You or your spouse may win a battle here and there but the reality is that the war was won by neither you nor your spouse. That story you want to share with the judge, the reason why you are fighting for everything and then some, will be moot as your divorce case is merely a number on a file of a stack of files the judge will review that day and the judge has only so many minutes to hear both your side and your spouse’s side of the story before rendering a final judgment based on the law and not based on all the points you outlined in your mind and have every intention of sharing but will most likely never get the chance to share. So besides the twenty minutes or so you may get before the judge, what other factors should you and your spouse take into consideration as you choose how you would like to end one chapter of your lives and start a new chapter?


Loss of Control of Your Finances

When you choose to go the route of litigation with attorneys on retainer, you and your soon-to-be-ex are choosing to communicate every aspect of your divorce through your attorneys.  When you and your spouse hire attorneys to represent you in your divorce, you will experience a loss of control of your finances in varying degrees in a couple of different manners.  One aspect is that when you and your spouse hire your attorneys, you are hiring the attorney and most likely an entire team on retainer.  Every minute spent by anyone on the team will be counted and those minutes, rounded to the nearest 10th, will be deducted from a retainer fee.  On average, an initial retainer fee may range from $7,500 to $50,000, depending on how much your attorney charges per hour, your location, the firm you hire. And now, multiply this by two as your soon-to-be ex-spouse now also has to retain an attorney, possibly paying the same amount in retainer fees.  Once you hire attorneys, it doe not matter if your spouse is paying for the attorney, these fees will be coming out of the assets you and your spouse will be negotiating over.  Keep in mind that the more you argue and fight over, the more it will cost you and your family in attorneys fees.  

Another way you may face a loss of control of your finances is that the attorneys you have hired are experts at the law but most are not experts in finance.  When drawing up settlement agreements, the attorney’s job is not to make sure you have enough cash flow in your monthly budget or look at how to divide the assets so that the tax consequences, short term, medium term, and long term financial scenarios are taken into consideration. They may not even think about the cost factor of drawing up QDROs (Qualified Domestic Relations Orders) when suggesting splitting assets a certain way over another.  Splitting accounts 50-50 down the line is not the best financial decision if you need to hire someone to draw up separate QDROs for various accounts. Also, as much as lawyers are not financial experts, the same goes for the judges.  Judges are the legal experts and the final say in your family’s finances if you go to litigation.


Loss of Control of Your Relationship with Your Children

Who knows your children the best?  When allowing for attorneys or a judge to make parenting decisions for you, you may not end up with the best parenting plan that works not only for you or your ex-spouse’s best interest but mostly, your children’s best interest.  

Something I remind my mediation clients who have children are that the end goal of this divorce is to keep your children in mind.  The choices you make today will set in motion what your present-day relationship will look like with your children but also how your relationship with your children and possibly your children’s children will look like in the future.  I ask my clients to imagine what their grandchildren’s birthday parties and graduations and other family events will look like and how they can make choices today, keeping in mind the future scenario they would like to have played out one day.  As hard as communicating with your ex-spouse may be, being able to come up with a parenting plan together for the sake of your children’s emotional, mental and physical well-being is something you and your ex should try and arrange versus having a stranger make the decision for you.


Loss of Control of Your Future

As mentioned, being able to make decisions together with your soon-to-be ex-spouse may not be easy but it gives both of you control over your finances as well as how your relationship will look like the day after divorce and well into the future.  Even if the divorce is not your decision, the decisions you make today will affect your family’s future.  Going to fight in court before a judge may be the right choice for you and your ex or it may not be.  Working with a mediator, or through a collaborative or cooperative divorce process to help you and your spouse have the opportunity to share your stories and your concerns will give both of you more control to make the right decisions for your family’s future than fighting for a few minutes in court.

There are a small number of divorces that are best served by going into litigation but as mentioned at the start, about 95% of divorces are worked out of the courtroom.  The small number may be that there is domestic violence, substance dependencies, mental health, or chemical imbalances.  In these instances, it may be the best choice to meet before a judge and have the judge decide what may be the best legal situation for you and your soon-to-be ex-spouse. 

Join us next week on Build Your Foundations, as we review the Collaborative Practice as well as Cooperative Divorce.


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