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Unaffordable Divorce

The National Law Journal
Monday, April 2, 2007

The titles of myriad self-help books graphically convey the predicament faced by ordinary people seeking a divorce that they can afford. A minute's tour of reveals manuals like Breaking Up Is Hard On You: The High Cost of Divorce, How to File Your Own Divorce and Divorce Yourself: The National No-Fault No-Lawyer Divorce Handbook. By its very nature, breakup increases a family's costs: Two, or more, can definitely live more cheaply than one by sharing a household, taking advantage of group memberships and generally enjoying economies of scale. But the process of legal disentanglement raises expenses exponentially, mainly because of the price of lawyering. (Hourly rates of $200 to $500 make a contested divorce for less than six figures rarer than a four-leaf clover.) Indeed, much of the public's dissatisfaction with lawyers stems from resentment over fees, which is nowhere more pervasive than in the matrimonial arena. For this reason, various measures have been adopted to try to ameliorate the problem.

Risks of going pro se

Self-representation, notwithstanding useful handbooks and the occasional "how to" clinic, poses very serious risks. Going it alone, even in an amicable split, may result in unwise choices, especially when the parties have children, substantial assets or unequal resources. Doing so in a litigated case would ordinarily be foolhardy (although, at times, to get rid of the inefficient pro se, a judge may exert pressure on the represented side to accept a lesser settlement). Attorneys may allow clients to reduce expenses by doing their own investigation or research. Still, laypeople can furnish only limited aid to counsel. So long as the "battle" model prevails, costs tend to mount uncontrollably, making divorce — a necessity for many — an unaffordable luxury for most.

Some promising coping strategies reject adversarial behavior in favor of a paradigm emphasizing cooperation and court avoidance. One of these, divorce mediation, enlists the spouses in face-to-face negotiation instead of counsel-surrogate warfare. A trained neutral works to defuse negative emotions and hone in on the real issues needing resolution. While lawyers ordinarily review the agreement before it is signed and taken to court (a desirable practice), they play a less significant role than in nonmediated matters. Successful mediation will thus save much of the time and money typically spent on traditional divorce, which — while usually resulting in settlement — often does so late in the game, after months or years of contention.

Another alternative to both mediation and "competitive divorce" is collaborative lawyering. This mode of procedure entails each side's hiring counsel, but for negotiation only. In the words of one of its advocates, Pauline H. Tesler, the participants agree "to work together respectfully, honestly, and in good faith to try to find 'win-win' solutions to the legitimate needs of both parties" that involves, among other things, disclosing all relevant information. See www.divorcenet.-com/states/california/cafaq09. Should the process fail, necessitating resort to court, these attorneys must quit the case; neither, therefore, has any incentive to quarrel just for the sake of quarreling or in order to run up fees.

Promoting collaborative law

This innovation has great money-saving potential since, in Tesler's estimation, "litigating an issue costs roughly ten times more, at a minimum, than resolving it through the Collaborative Law process." In addition, like mediation, it helps to preserve a civil relationship between the ex-spouses — which inures, above all, to the children's benefit. In recognition of the virtues of this approach, Chief Judge of New York Judith S. Kaye recently announced plans to establish a Collaborative Family Law Center in New York City later this year. As an added boon, it will provide attorneys for clients who cannot afford them.

To be sure, neither mediation nor collaborative law is a panacea; some cases will inevitably be hard fought. For litigants with lawyers who inflate bills or charge for services not performed, mandatory fee arbitration at the client's behest, which exists in a number of states including New York, can furnish victims modest relief. The fundamental problem, though, is not villainous attorneys but rather a dysfunctional system, which gives the state a monopoly on divorce yet rarely does anything to make it affordable. For those cases that cannot settle relatively amicably, maybe we need assigned counsel, at regulated rates, to represent all but the wealthy. Or we must think out of the box and invent a wholly different means of overseeing family breakup. One thing is certain — we cannot tolerate the status quo.