A Tale of Two Divorces
Divorce #1 ~ Bob and Barbara:
Bob and Barbara had been married for 20 years, and they had a contentious marriage for most of their marriage. Their friends, Carol and Chris had been married for about the same length of time and also had a difficult marriage for their last few years. Each couple had two teenagers who went to the same high school. There were lots of similarities in their family relationships and in their socioeconomic situations. But each took different approaches to getting a divorce, and the difference to their approach had a big impact in every way – financially, emotionally and their post-divorce co-parenting relationship.
Mediation: Bob and Barbara had already started living separately – Bob had moved to the basement and used a separate entrance. They could not agree on much, but Barbara and Bob agreed to try mediation because mediation had worked in several of their friends’ divorces. They found a mediator that came well-recommended. The mediator explained that she could not take sides or make decisions for Bob and Barbara, that the conversations were not only confidential in the eyes of the court, and that the decisions were in their hands if they could reach an agreement. In mediation they found themselves yelling a lot at each other and engaging in the same arguments they had had many times on their own. The mediator tried having them meet in separate rooms and did her best to help each understand the other’s point of view, but Barbara felt unsupported during the process and Bob felt frustrated they weren’t making any progress. Despite the mediator’s best efforts, they were not able to reach an agreement before the mediator suggested that mediation was not the best process for them. The mediator had charged $240/hour. After three sessions, and billing for correspondence, Bob and Barbara were billed for about $1,200.
Attorneys: After they had been unsuccessful in mediation, Barbara felt desperate to get the ball rolling, so she decided to retain an attorney. Her attorney was known for being a “pitbull” who “will fight for you to the end.” Barbara’s attorney required a $15,000 retainer which Barbara paid for with a credit card at zero interest for 12 months. Barbara’s attorney filed a petition for dissolution of marriage immediately and proposed that Barbara have sole custody of the children with every-other weekend parenting time for Bob and that Barbara should keep the home and 70% of Bob’s retirement savings. When Bob was served with the initial paperwork he was shocked and angry with what Barbara’s attorney had proposed, so when he saw who Barbara had retained, he decided to go with an equally aggressive “men’s rights” attorney as a defensive measure. The retainer for Bob’s attorney was $18,000, which he paid from a loan on his 401(k). Bob’s attorney filed a response to Barbara’s petition and then a number of other filings were filed back and forth between attorneys. Bob and Barbara did not fight as much with each other because their attorneys had instructed them not to discuss issues with each other, and that they (their attorneys) would handle it. Bob and Barbara each saw their first bill about a month after each had retained an attorney. About a third of each retainer had been used up in the process. Bob and Barbara each were experiencing a high level of anxiety as a result of the financial bills and the uncertainty of how the litigation process would go. Barbara started drinking every night after work to numb the emotional pain and anxiety. Bob started to become short with his coworkers and struggled to focus on his work responsibilities.
The Long Slog: Six months later, Bob and Barbara were still waiting for court. Barbara’s attorney had been unresponsive for a month, both to Barbara and to Bob’s attorney, because the $15,000 retainer had been used up, Barbara did not immediately make another payment and Barbara’s attorney was unwilling to work without a guarantee of payment. Barbara eventually borrowed $4,000 from her sister and another $1,500 from a friend and took out another credit card – this time with 18% interest right away for $5,500 to get to another $11,000 for her attorney. Bob had cashed out an IRA he owned from before he and Barbara were married to pay another $7,000 to his attorney. Depositions had been scheduled and then postponed several times due to the attorney’s schedules and more requests for evidence. Barbara and her attorney believed there could be more accounts Bob might be hiding because Bob had forgotten to provide the most recent statement. Bob was insistent that he and Barbara have joint legal custody because he was not going to allow Barbara to “take the kids away” from him, and Barbara was not willing to agree to joint custody with Bob given how much he and Barbara had disagreed about the divorce. Meanwhile, the children, Brad and Bella were each struggling in school. Brad had spent less time at home and his grades had dropped so he was kicked off the soccer team. Bella was doing okay academically but she was spending most of her time with his boyfriend.
A Year Later: A year after filing, Bob and Barbara with their attorneys had agreed on a holiday schedule and a 55/45 split of the retirement assets but they still had not agreed on what to do about the house. Bob wanted to sell it within 2 years and divide the equity and Barbara wanted to keep 60% of the equity and sell in 5 years when the kids were a little older. They had agreed on a holiday schedule where Bob had every-other Thursday to Monday, with equal division of summer break parenting-time, but there was still no agreement on custody. A court hearing had been scheduled for six months out. Barbara’s credit card started charging a high interest rate of over 24% and Bob’s 401(k) loan was mostly unpaid, with 9% interest accruing.
Fifteen months after filing, Bob and Barbara were scheduled for a settlement conference with a judge, who said he would not be the judge deciding their case if they had trial but wanted to give them a reality check about what trial might look like if he were deciding the case in an effort to encourage them to settle out of court. The attorneys insisted that a trial would be necessary. Each required a $15,000 additional retainer to prepare for trial, which each paid with a loan from their respective extended family.
Final Resolution: Eighteen months after first filing, an 8-hour trial was held with expert witnesses. Barbara and Bob each had to testify and answer confrontational questions from the other spouse’s attorneys. A lot of the personal details of the marriage came out as each attorney tried to make the other spouse look irresponsible and an unfit parent. Barbara was awarded legal custody of the children, with a parenting time schedule previously agreed-to, but Barbara only received 55% of the equity and the judge ordered a sale of the home within one year. The court hearing was contentious Neither was happy with the results of the trial and each had significant debts from paying the attorneys’ fees. Barbara and Bob would argue any time they had to interact and Bob threatened to take Barbara back to court re-litigate custody. Barbara continued to struggle with alcoholism as she coped with a poor financial outlook as she scrambled to prepare for retirement. Bob was fired from his job as a result of poor performance due to being distracted with the divorce, and although he was eventually able to secure new employment, he was forced to declare bankruptcy and was not able to fully recover financially or emotionally from the effects of the divorce.
Divorce #2 ~ Chris and Carol:
Bob and Barbara’s friends, Carol and Chris also had a lot of conflict at the end of their marriage. A couple of years before separating, Chris had been unfaithful to Carol and Carol felt a lot of anger and betrayal when she found out. Carol wanted to end the marriage and Chris said he did not want to make it a difficult divorce, he just wanted to see the kids and wanted something “fair,” as far as the property and debt.
Collaborative Divorce: Carol was interested in resolving their case amicably but she was not sure whether she could even face Chris in the same room, so she met with a mediator who was also an attorney to discuss the situation. The mediator/attorney listened to what Carol had to say, and given the fact that there was a lot of conflict in the relationship, that Carol had not worked through the emotional pain of the divorce. Carol shared that she trusted Chris that he would not lie about money and that she felt like he could be a good parent moving forward, despite the fact that he had hidden the fact that he had maintained another relationship for the last year of their marriage. With Carol’s permission, the mediator reached out to Chris. Chris also expressed interest in resolving the divorce amicably, but he did not want to deal with all the anger Carol expressed any time they talked. The mediator indicated that given the fact that the parties wanted to resolve the case amicably, but because there was still a lot of conflict, that they would benefit from something more than just mediation; collaborative divorce. In a collaborative divorce each spouse would work with an attorney who was collaboratively trained and as part of their role as a collaborative attorney they would not be able to litigate the matter in court and would withdrawal if the collaborative process was unsuccessful. The mediator referred Carol and Chris to a list of collaborative attorneys. Carol’s attorney required a retainer of $6,000 which she paid from savings and Chris’s attorney required a $6,000 retainer which he paid from a low-interest credit card.
Attorney Involvement: Chris and Carol each decided on an attorney and signed an agreement indicating they understood that their collaborative attorneys would not be able to work with them if for whatever reason they were not able to reach a full agreement. The collaborative attorneys agreed to charge the same rate to each of their clients: $300/hour. The collaborative attorneys went to work by gathering information and forming a team of other professionals – including two mental health counselors with experience working with divorcing clients, and a financial advisor with a certified divorce financial analyst (CDFA). Carol and Chris gave permission for the professionals involved to share information freely with each other. All professionals had also been collaboratively trained. The attorneys suggested that Carol and Chris first connect individually with a counselor to screen for whether the dynamics of where each spouse was at emotionally was conducive to the collaborative process. After meeting with their respective clients, both counselors indicated they thought Carol and Chris could handle the collaborative process but Carol’s counselor suggested some ongoing therapy to work through some of the emotions and that it could be helpful for Carol’s mediator to participate in the negotiation meetings or at least to be available by zoom while she was doing other work and agreed to charge a reduced rate.
Making Progress: Chris and Carol then started to work with their attorneys to gather information. A month later, Chris and Carol had gathered the information and they had started to have negotiations. The financial professional helped Chris and Carol gather some missing statements and then worked with them to develop a projected budget based on their anticipated expenses once they lived separately. Carol and Chris’s attorneys were able to give Chris and Carol reality checks as they were talking or in short individual breakout meetings. Carol wanted Chris to only have supervised visits, but her attorney was able to help her understand that a judge was not likely to award supervised parenting-time unless there were serious safety concerns and that the court generally had the approach of making sure each parent had substantial parenting-time. Chris wanted to divide the assets equally, but his attorney pointed out in a breakout session that during the marriage Carol had stayed home with the children when they were young and she was not as far along in her career as she otherwise would be. Plus, Chris had a higher earning potential and therefore a greater ability to save for retirement.
End Result: Chris and Carol were able to reach full agreement, in fact the same terms that Bob and Barbara ended up with, just with a lot less money. Carol and Chris each paid $7,000 total.
- Barbara and Bob collectively paid over $82,000
- Carol and Chris collectively paid $14,000.
Not only did Chris and Carol spend less on their divorce, but within six months Carol and Chris were able to finalize their divorce, and during the process they experience much lower levels of stress and anxiety. Their children indirectly benefited from the process as well, with fewer behavioral and academic challenges than Bob and Barbara’s children Brand and Bella. Chris and Carol had a positive co-parenting relationship coming out of the collaborative process, and while they still had disagreements, they were able to successfully avoid further litigation and enjoy a much more secure financial path.
It can be tricky to know how to proceed with a divorce. Mediation, Collaborative Divorce, Litigation with Attorneys can all make sense under different circumstances. It makes sense to consult with a collaborative attorney who can help you explore your options and to decide what option makes the most sense for you.