Divorce is a challenge, no matter what. There are, though, some cases that are even more difficult than normal. It can be hard, in the very early days, to accurately judge a case and determine whether *this* case will be one of the more difficult ones.
One of the hardest things to navigate – in my opinion – is the transition point between a separation agreement and a divorce case. Let’s discuss.
Separation Agreement Cases
A separation agreement case is one where you retain an attorney to try and negotiate a contract dividing all the assets and liabilities and apportioning all the responsibilities arising from your marriage between the two of you. Once a separation agreement is negotiated and signed, those parties can then move forward (after the requisite period of separation has been satisfied, of course) with an uncontested divorce.
These are often the easiest, cheapest divorces with the best results, because everything is negotiated by the parties (usually, though not necessarily always, with counsel).
The problem, though, is that we can’t make him participate. Even if he does participate, we can’t make him agree. It takes two people to get a separation agreement in place and if he just won’t play ball, well, then there’s little we can do.
It doesn’t mean I’m not aggressive or I’m not advocating for my clients; it means I literally have no further power here.
Part of the siren call of the separation agreement is that it’s cheaper to retain – at our firm, usually somewhere in the neighborhood of $3,500 – compared to a contested divorce – at our firm, more like $7,500 and beyond, depending on the level of complexity. For some people, the idea of retaining at all when a contested divorce costs so much (and that’s just the retainer) is a nonstarter. They’re determined to resolve things with a separation agreement. In some cases, they spend all they have working on trying to get it negotiated.
This is a dangerous place to be in, and one that I always caution my clients to avoid. You never want to spend every single cent you have on a path that might prove to be fruitless, right? You need to have something left in reserves in the event that it just doesn’t work out the way that you hope. But the other path – the contested divorce path – is just so expensive and overwhelming that it’s even more intimidating.
The problem is, once all your reserves are gone, you’re extra vulnerable. This puts you at risk of deciding to walk away from assets to which you would otherwise have been entitled because you can’t afford to pursue it and, maybe even worse, from the stress and trauma associated with abusive litigation, especially in cases where you and your husband share a child (or children) in common.
Divorce Cases
But the only alternative here – if he won’t agree to a separation agreement, or insists on terms that are nonnegotiable for you, or just won’t participate at all in negotiations – is to go to court. Family law attorneys differentiate between separation agreement cases and divorce cases (though, obviously, the end goal in all of these cases is divorce) because a divorce retainer means that the attorney will represent you in court.
Going to court makes a big difference because, at that point, he can’t stop things from happening. If he’s incredibly obnoxious, he can slow them down or he can hire a particularly vexatious attorney to represent him, but he can’t stop it entirely. Divorce does not require his consent.
At that point, we can file discovery, hold a pendente lite hearing, and take real, concrete steps towards setting a final trial. In most cases, there is not a full trial. Almost everyone settles eventually because the cost of a trial is too much. That doesn’t mean, though, that it happens easily or that he folds before you’ve exhausted the limits of your own personal budget.
I have so many clients who can ultimately barely afford to retain me for a separation agreement, let alone a contested divorce. This means that, sometimes, the case will stall for an extended period. I’m – not just me, of course, but any divorce attorney – at the limits of what I can achieve if I haven’t been retained for litigation.
Sometimes clients understand. Sometimes they don’t. I get it; they’re experiencing one of the worst, most stressful times in their lives. They’re bound to be angry sometimes, whether at him or me or someone else entirely.
It’s not easy if your case has stalled. Is this the reason? If you’re unhappy with your attorney – whether it’s us or someone else – you can always get a second opinion to see whether more could or should have been done. Give us a call at 757-425-5200 to schedule a consultation (or appointment for a second opinion) or to request a copy of one of our free books.
