Divorce Litigation Train

When you hear that someone you know has “filed for divorce,” what is the first thing you think?  Do you think that means they will be divorced soon?  Do you think that means they must disagree about everything or hate each other?  What do you think happens next?  Well, “filing for divorce” is exactly the same as suing someone – like suing your landlord for property damage from a leaky pipe.  Whenever you sue someone you start a process in motion, and that process is called litigation.

At the end of this post we will look at the costs associated with divorce litigation, but before we discuss the cost, let’s look in more detail at what you will be paying for when you embark on divorce litigation.  I use the word “embark” purposefully, because the process of getting a divorce through litigation is somewhat like taking a ride on a train.  You can think of the court’s rules and procedures for divorce litigation as the train track – they are in place to keep the train moving toward its destination.  The court is committed to moving each divorce case forward because there are many divorce cases filed each year.  Between two and three thousand divorces were filed in Fulton County in 2016, and every one of those cases traveled on the same track.

Let’s assume that Husband hires a divorce litigation attorney to represent him, and Husband’s lawyer advises Husband that suing for divorce is the best way for Husband to get what Husband believes he deserves.  Based on that advice, Husband decides to “file for divorce.”  “Filing for divorce,” a term familiar to most people, means that Husband’s lawyer files a Complaint for Divorce with the court. The Complaint for Divorce asks the court to grant Husband a divorce.  Filing the Complaint for Divorce is like Husband buying both Husband and Wife tickets on the Divorce Litigation Train – the DLT.  So, the Divorce Litigation Train pulls out of the Courthouse Station on January 1 with Husband, Husband’s lawyer, and Wife on board.  Like any train, there likely will be many other passengers on the DLT – lawyers, of course, your children, your friends, your parents, your siblings, your in-laws.  They are also along for the ride.

Wife finds herself on the DLT without a lawyer to represent her so she sets about to hire someone who will listen to her side of the story and assure her that she should also get all that she believes she is entitled to get from the divorce.  Wife hires an attorney (often the only one she meets with), pays that attorney’s retainer, and gets her attorney up to speed on all aspects of her marriage and divorce.  Wife’s attorney prepares the Answer to the Complaint for Divorce.  The Answer must be filed with the court within 30 days after the Complaint for Divorce was filed.  It is helpful to think of the DLT making its first stop at Answer Station. Let’s say the DLT arrives at Answer Station on February 5.

Now is a good time to point out that it is possible to stop the train and disembark.  As you continue, however, it will be more and more difficult to stop because Husband and Wife will have become entrenched in their positions (for example, about how much of the retirement accounts they should receive, about how many weekends they should have the children, about how much alimony they should have to pay, about whether or not they should have the originals or copies of the family photos).  Their willingness to be flexible and compromise lessens as time goes on because they have been making certain demands and have been getting support for those demands from their lawyers, friends and family.  At some point, compromise is viewed as weakness and neither Husband nor Wife wants to be seen as weak or as “leaving something on the table.”  Also, as time goes on both Husband and Wife have incurred more and more attorneys’ fees.  It becomes very hard to agree to “give up” something that you have spent so much money fighting to keep.

As the DLT pulls out of Answer Station on February 5, it begins its journey through the province of Discovery.  Discovery Province is vast and the train must travel many miles across rough terrain.   At the far end of Discovery Province is Discovery Station, the next stop for the DLT.  Discovery is the legal process allowing each party to ask questions, which must be answered under oath, about the other party.  This procedure allows each side to build its factual case against the other party.  In a landlord/tenant lawsuit, for example, discovery is a chance for a landlord to ask a tenant questions about rent payments, any damage to the apartment, all guests that the tenant invited to the apartment, etc.  Likewise, the tenant gets to ask the landlord all about the leaky kitchen faucet, the unrepaired window and the noisy upstairs neighbors.

In divorce litigation, discovery requires Husband and Wife to exchange information related to their own economic, financial, and personal situations.  Discovery can be a simple, informal exchange of documents and information.  Discovery can also be conducted more formally and, in this case, Husband and Wife are advised by their lawyers that they should each send the other Requests for Production of Documents, Interrogatories and Requests for Admissions.

Requests for Production of Documents require both spouses to make available all documents that relate to the divorce, the marriage, their separate property, and income.  Both Husband and Wife have the right to see most documents that even arguably relate to the divorce and related issues that will require resolution. Interrogatories are questions designed to determine what the other spouse’s version of the facts is and what facts the other spouse will be using to support his or her demands. “Requests for admission” ask a party to admit or deny certain facts pertaining to the divorce and related issues.  There are very few areas that are off limits – their finances, communications, relationships, etc.  All answers are given under oath that they are true.

Finally, Wife is deposed by Husband’s lawyer and Husband is deposed by Wife’s lawyer.  At their deposition, Husband and Wife each answer questions under oath and a court reporter records everything that is said at the deposition.  Both lawyers like depositions because they show how the other party will behave when they are a witness at the divorce trial.  Seeing how the other party handles questioning under stress can provide insight into how best to conduct the trial.

There are very few areas that are off limits during discovery, and if there are disputes about whether something is “discoverable” or whether one party is adequately responding to discovery, Husband and Wife can go to court and ask the judge to resolve the dispute.  Often one party’s attorney will object to certain questions the other party has asked or to certain requests for documents the other party has made.  This can delay the entire process, increase the cost to the parties and further poison the relationship between the parties. The DLT will likely take no less two months to get through Discovery Province to Discovery Station, but most trips take many more months because both Husband and Wife need time to gather all the information needed to answer discovery questions and produce all the documents requested, and attorneys often agree to extend the discovery period for a variety of reasons.

This is a good time to remember that Husband and Wife can disembark at any time.  They will have to agree that they are willing to work to resolve their issues outside of the court system.  Because discovery is complete both Husband and Wife have a pretty clear idea of the issues that need resolution and the arguments each will make to support their positions.  If both Husband and Wife can agree to work on these issues outside of the court system they can dismiss their lawsuit, negotiate an agreement and then file all the necessary paperwork with the court when all issues are settled.

Discovery Station is located at the top of a hill and the DLT strains up the hill and slowly pulls into the station.  Let’s say that it took Husband and Wife six months to reach Discovery Station so the DLT arrives there on July 5. While the DLT is at Discovery Station the court sets a trial date for August 15.  Once the DLT leaves Discovery Station, it is all downhill to Trial Station.

Husband’s and Wife’s attorneys start spending a lot of time preparing the case for trial.  They must be ready for trial and trial preparation is something attorneys take very seriously and, therefore, spend a lot of time on.  Of course, Husband or Wife want their lawyers to be prepared and, because the case has been ongoing now for eight months, neither Husband nor Wife will be easily dissuaded from the belief that their positions are the right ones.

And the trial should be taken seriously because at trial the judge will be making final decisions about critical issues that will affect how Husband and Wife and their families live their lives for years to come.  The judge will decide how marital property gets divided, how much child support is paid, how much alimony, if any, is paid, and what the parenting plan will be for the children.  The lawyers will spend a lot of time preparing for trial because at trial the judge hears the facts and applies the law to those facts and renders a verdict – just like with the landlord and tenant but in a divorce, there are very different things at stake.  Certainly, some of the issues in a divorce involve money (like unpaid rent to a landlord) and might seem cut and dried, but these issues can be fraught with emotion, too.  For instance, the question of who, if anyone, will keep the marital home is often a truly divisive issue because one party views it mainly as the family’s emotional and historical home and the other party views it primarily as a hard-earned asset.  Both parties are correct because their feelings about the home are simply that – their feelings.  It is now up to the judge to decide whether Husband or Wife is right.

The DLT pulls into Trial Station on August 15.  Because the parties did not get off the train and negotiate their own settlement the judge decided all the issues in their divorce.  During the trial, the judge announced his decisions in court and following trial it is the job of Husband’s and Wife’s attorneys write down the judge’s rulings into an order for the judge to sign.  Because the judge issued decisions in court without addressing all of the details of each issue, the parties find themselves in a position of continued negotiation for several weeks about the specific language in the order.

On September 1, the Judge enters the Final Judgment and Decree Divorce and the DLT pulls into the final stop on its journey, Courthouse Station – right back where they started.

How much did the ride on the DLT cost?  The ride cost Husband and Wife at least $100,000 in combined attorneys’ fees.  How did this happen? Often one spouse has access to more disposable income that the other spouse.  In situations where one spouse earns significantly more income that the other spouse, the higher earning spouse will be able to pay more in attorney’s fees as the case progresses.  The lower earning spouse is still entitled to legal representation so it is possible that the judge will order the higher earning spouse to pay some or all of the other spouse’s unpaid legal fees.

It is important not to let the discussion about Husband’s attorneys’ fees or Wife’s attorneys’ fees distract from the fact that in most divorces the money that is being paid to the attorneys is marital property – meaning it is wealth accrued during the marriage and both spouses should receive an equitable share of it.  To the extent that either party pays attorneys’ fees, the total amount of marital wealth available is reduced.  More importantly, every dollar spent on attorneys’ fees is a dollar less that is available for the support and education of the couple’s children.  In divorces not involving children, it is a dollar that is no longer available for retirement, a mortgage down payment, returning to graduate school, taking a vacation… the list goes on.

The best way to avoid an expensive ride on the Divorce Litigation Train is not to buy a ticket.  The further the DLT travels, the more expensive the ride becomes and the financial and emotional toll it can take on all of the passengers – spouses, children, family and friends – can have a long-lasting effect.

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