If I could give you one piece of advice as you begin to prepare for your divorce case, it would be this: keep calm.
I know, I know. That’s easier said than done. Divorce is complicated, and it affects a lot of things—among the most important of which are your family and your finances. It’s stressful, it’s overwhelming, and your life is changing.
On top of all that, your husband (you know, that man who promised to love and cherish you) isn’t being very nice. He’s threatening to do things that make the insides of your stomach slosh around uncomfortably. He’s hurling around insults that profoundly hurt and embarrass you, and you hope to goodness he’s not saying the same things to all your mutual friends.
Most women feel some crazy combination of a number of competing emotions—angry, scared, sad, anxious… The list goes on and on. When you’re feeling badly, you’re liable to act a little unpredictably. I’ve seen it time and time again, and it’s totally understandable. Still, if saving money is something you’re interested in when it comes to your divorce, I have to tell you: please, please, please, just keep calm.
This week, we’ve been talking a lot about how to save money in your divorce case. On Monday, we talked about pro bono services and how attorney’s fees really work. Then, on Wednesday, we talked about how you can save money once you’ve hired an attorney (believe it or not, there are a lot of things you can do to respect your budget). Today, we’re going to talk about the different kinds of divorce, including what the different costs associated with each are, and how you can control them and keep them as low as possible.
Of course, there are things that can impact your divorce case that you have no control over, and some of those things can drive up the costs of your case. But that’s true for just about everything, isn’t it? No one can control everything but we can choose to concentrate on the things that we can. Right?
It’s safe to say that contested divorces are more expensive than uncontested ones.
Let’s just start there. When I say “contested” divorce, I mean a divorce where husband and wife weren’t able to reach an agreement regarding how their assets and liabilities will be divided. Contested means, basically, that there’s still a fight brewing and that nothing has been formally settled.
A contested divorce can be fault based or no fault based. It is also safe to say that a contested fault based divorce is generally more expensive than a no fault contested divorce. Why? Well, in a fault based contested divorce, you’ll have to (1) provide evidence supporting your alleged fault grounds (or, if your husband is alleging fault, he will have to provide supporting evidence, and you’ll have to defend against it), and (2) make your argument for how the assets and liabilities should be divided, with supporting evidence and witnesses. In a no fault contested case, on the other hand, you only have to make your argument for how assets and liabilities might be divided—the whole fault based portion of the hearing doesn’t exist.
Why do you have to do all that for fault? Well, you have to PROVE fault based grounds; it’s not enough just to allege them. Because certain civil and, in some cases, criminal, consequences that follow from these judgments, courts require that these issues be litigated and satisfactorily proven. Take adultery for example.
Adultery
Adultery (along with sodomy and buggery) is one of the sexual fault based grounds for divorce. To allege adultery (meaning, to put it in your complaint) you really just need to be able to provide the court with a few details: usually, the initials of the suspected paramour, and the suspected date and location of the adultery. That’s not enough, though, to have your divorce granted on grounds of adultery.
Adultery carries some pretty stiff penalties. For one thing, it’s a misdemeanor. It’s rarely prosecuted (if ever), but it’s still a misdemeanor. It’s criminal! For another, it also carries penalties in terms of how your divorce will go forward. Generally speaking, people who have committed adultery can’t ask for spousal support. Theoretically, too, the judge could use the adultery as a reason to justify a disproportionate award of the assets to one person. (Translation: the person who was wronged could end up getting more than the adulterer.) It’s probably unlikely, but it could happen.
Because of all these potential consequences, adultery has to be proven. Evidence has to be provided, and a judge has to make a finding that the adultery occurred.
Even if he admits that he has committed adultery, even if he says that he’s willing to sign a separation agreement saying that he has committed adultery, that’s not enough. An actual hearing has to happen, and a judge has to find, based on evidence, that there really was adultery. As you can imagine, this adds an extra layer of difficulty to a case—which, in turn, affects how much it costs overall.
With a no fault contested divorce, you can get straight down to the nitty gritty of deciding how everything will ultimately be divided.
Generally speaking, uncontested divorces are the least expensive option.
An uncontested divorce, on the other hand, is always no fault. (Like I said earlier, you can’t sign an agreement admitting that fault based grounds exist. That has to be proven to the judge.)
In an uncontested divorce, you reach an agreement about how everything will be divided instead of letting the judge decide. As you can imagine, this is generally less expensive because so much less work is involved. Instead of fighting over whether fault based grounds exist and how every single thing should be divided, you and your husband work together (with or without attorneys) to reach a resolution that is agreeable to both of you. That means no witnesses, exhibits, direct or cross examination, settlement conferences, pre trial briefs, and other things that drive up the costs of your case.
Of course, it’s not ALWAYS possible to settle and, even if it were, it isn’t automatically cheaper—certainly, you and your husband could draw out negotiations (theoretically at least) for long enough that, eventually, trial would be cheaper, but it’s still very, very unlikely.
Unlike a litigated divorce, which follows a pretty predictable, but long and drawn out, pattern, a one uncontested, no fault divorce can look very different from another, depending on the circumstances. Basically, there are 4 different ways you can go about getting an uncontested divorce. Let’s discuss.
1. Mediated Uncontested No Fault Divorce
You can get an uncontested, no fault divorce working with a mediator. A mediator is a person (who may or may not also be an attorney) who is responsible for helping the two of you reach an agreement. You don’t each hire your own mediator; you share one.
As you can imagine, getting divorced by allowing a mediator to help you negotiate the terms of your agreement is often one of the more inexpensive ways to get divorced because you only hire one person and you negotiate. In terms of cost, using a mediator is (usually) fairly inexpensive.
Still, you should be aware that there are both good and bad sides to working with a mediator. While it’s often possible to save money, it’s also a pretty tricky thing to navigate. The mediator may or may not be an attorney, as we’ve already said, but, more important than that—it’s not the mediator’s job to advise you of your rights, give you an idea of what a judge might allow, or educate you about Virginia law and what you’re entitled to under it. It’s a great option, but only if you’re prepared.
2. Negotiated Uncontested No Fault Divorce With Attorneys
You can do pretty much the same thing as you do in mediation (that is, negotiate an agreement with your husband) by hiring an attorney to help you. When you work with an attorney, though, things are a little bit different. For one thing, an attorney isn’t allowed to represent both you and your husband in a divorce. It’s against our ethical rules because the two of you are adverse parties.
It IS the attorney’s job (unlike a mediator) to advise you of your rights, tell you what the law allows, and let you know what a judge might do. It is the attorney’s job to help pursue the goals you indicate, and to zealously represent your interests. An attorney will argue on your behalf and promote your arguments.
You and your husband are usually both represented by attorneys, though it is possible that one of you would be represented and the other would not. You’ll negotiate back and forth until you have a draft that you can both agree to, and you’ll sign. As you can imagine, since you’ve probably both retained attorneys, this is more expensive than mediation.
3. Collaborative Uncontested No Fault Divorce
Probably the most expensive way to get an uncontested divorce is through collaboration. In a collaborative divorce, both you and your husband retain collaboratively trained attorneys. You’ll also hire divorce coaches (one for each of you), and you’ll share a financial specialist and a child specialist (if you have minor children). As you can imagine, each of these professionals costs money.
In a collaborative divorce, the parties pledge not to go to court but instead to reach a compromise together.
It may be expensive, but collaborative divorce is worth it. It’s almost always successful (in something like 99% of cases, an agreement is reached), and the people who go through the collaborative process have the most overall happiness in terms of both their experience and, ultimately, the result.
4. Negotiated Uncontested No Fault Divorce Without Attorneys
You can also negotiate an uncontested, no fault divorce without hiring an attorney. Obviously, this is often the cheapest way—but, of course, you have to keep in mind that sometimes up front costs help you avoid expensive mistakes later on down the road. After all, isn’t it worth it paying for an attorney if it saves you thousands and thousands of dollars?
The thing you have to beware of is just the not knowing. If you don’t know the law, what the court system might allow, or even what you’re already guaranteed to receive, you’re not really in a position to sit down and draft an agreement. Remember, too, that agreements signed are very difficult (if not impossible) to un-sign later, so you want to be sure you’re not making any mistakes.
When it comes to saving money on divorce, the type of divorce you want to get matters. It’s important to think about these things now, before the situation escalates. A lot of times, a good attitude can help keep a divorce in the realm of the uncontested, while a bad attitude (and certainly two bad attitudes) can escalate things into an expensive and unnecessary situation.
Ask yourself: is it worth it? Talk to your attorney about your case and what you might expect to receive, and figure out what type of divorce will be most advantageous for you (usually, the answer is an uncontested divorce). I’m not opposed to a contested divorce, and neither are most of the other divorce attorneys I know, but, at the same time, I like to keep in mind what is in my client’s best interests. If going to court will yield better results then, by all means, go to court. But if, as is most often the case, going to court only means that there’s less money left over to be divided between the two of you, there’s no reason at all to go to court.
Keep calm. Keep focused. And do what you can to make sure that your divorce costs as little as possible but still achieves your main objectives—that way, you’ll be well on your way to the best, freshest new start possible.
For more information, or to schedule a consultation with one of our licensed, experienced, Virginia divorce attorneys, give our office a call at (757) 425-5200.