9 Ways to Reduce the Cost of Your Divorce

Divorce is never an easy or pleasant process.  However, these tips can help you minimize the time, conflict and cost associated with the divorce process.

1.    Decide Which of You Will Be the Petitioner

The divorce process officially begins when one of you files a Petition for Dissolution with the Court.  This does not have to be an adversarial process.  California is a no-fault state, which means that there are no legal penalties based on which spouse “caused” the divorce.  Therefore, almost all California divorces are filed based simply on “irreconcilable differences”.

If you have not already served your spouse, or been served with papers yourself, the two of you have an opportunity to decide which of you will initiate the process.  Often, the spouse who feels more strongly that divorce is appropriate prefers to be the petitioner.  Some lawyers feel there is an advantage to being either the petitioner or the respondent, so it wise to seek legal advice before taking any actions.

2.    Be Open to Divorce Mediation

Prior to filing, you should decide if you will try divorce mediation.  If you have been able to discuss issues openly and reasonably in the past then, even if neither of you agree on any of the issues at hand, divorce mediation may be a good option for you.  If there are significant imbalances of power, or if domestic violence or child abuse are involved, then you probably need the representation of a family law attorney.

3.    Agree On Your Date of Separation

Your date of separation is determined by the day that you physically separated and one of you decided that the marriage was “irretrievably broken”.  You did not have to both agree at the time one of you made this final decision.  While couples may separate and then work things out several times, there can only be one legal date of separation.  Your date of separation affects many features of your divorce, including the characterization of your property and earnings and spousal support.

4.    Seek Independent Legal Advice

Even if you agree on most issues and want to avoid legal proceedings as much as possible, it is important that you discuss your options with a family lawyer or divorce attorney.  Some lawyers offer free consultations, while others charge an hourly rate.  Even if it costs each of you a few hundred dollars, it is worth the money to understand the presumptions of California community property law, your options regarding custody and visitation, and your rights and obligations concerning child and spousal support.

Certain lawyers use a process called collaborative divorce, in which they will advise you of your rights while also trying to work cooperatively with the other side to reach agreement outside of court.  Collaborative divorce can also involve other professionals, such as child specialists and divorce coaches, and additional written agreements to encourage fair and civil negotiation of the issues.

5.    The More You Can Participate and Agree, the More You Will Save

Ironically, at the same time you are divorcing based on irreconcilable differences, the more you can agree on issues and participate cooperatively in your own divorce, the more money each spouse can save.  It is possible to complete an uncontested divorce by representing yourselves “in pro per” (without a lawyer).  However, the process and forms required (see below) can be complicated.  You must be willing to research self-help resources, complete required forms, and file the forms by certain deadlines.

6.    Discuss Ideas for Property Division

Divorce attorneys typically approach issues of custody, support and attorney fees in that order.  Divorce mediation uses a different approach. Typically, property division is addressed first so that spouses will know what they each have to work with.

In divorce mediation and collaborative divorce, spouses can make their own decisions as to what constitutes “fair division” of the marital property.  Spouses who work cooperatively may be able to avoid the sale of their home and the division of other valuable assets such as 401(k) and pension plans.

7.    Work Together to Create a Parenting Plan

Next, try to change your mind frame from being “spouses” to being “parents”.  Children benefit when parents can communicate and work cooperatively in their best interests.  A successful parenting plan will have a regular schedule, an exception schedule, a holiday schedule, a communication plan, and other agreements that will reduce the chance of future conflict.

8.    Mediate Reasonable Support

Court awards of child support or spousal support are often the biggest point of contention in a litigated divorce. These issues can result in thousands of dollars in legal fees, and sometimes both spouses are still unhappy with the court’s decision.

In California, child support is based on a statewide “guideline”.  A family lawyer or divorce mediator can run the complicated equation that determines an estimate of what the court will award.  In divorce mediation and collaborative divorce, you can use the guideline as a starting point, but you can also agree to add other exceptional factors into your child support agreement.

Determining “reasonable” spousal support can get a bit trickier.  Temporary spousal support is based primarily on each party’s last twelve months of income.  However, when determining permanent spousal support, the court considers additional factors, including:

  • The earning capacity of each spouse;
  • Contributions to education, training or licensing of the high earner spouse;
  • The length of marriage;
  • The marital standard of living;
  • The age, health and work history of each spouse;
  • The need and ability to pay support;
  • The need to finish raising minor children;
  • The goal that the supported spouse be self-supporting within a reasonable time;
  • The obligations and assets, including separate property, of each spouse;
  • The immediate and specific tax consequences to either spouse;
  • Any history of domestic violence; and
  • “Other factors” the court deems appropriate.

Spouses using divorce mediation or collaborative divorce can agree to waive spousal support in consideration for other terms, determine regular payments for a set duration, or agree to a single lump sum payment consisting of cash or property.

9.    Assist in Forms Preparation

Much of the California divorce process uses Judicial Council forms.  However, knowing which forms are required and filing them at the right times can be confusing.  You can reduce the cost of your divorce if both spouses are forthcoming with information and timely with forms preparation.  You should also both be familiar with the dissolution process.  A self-help overview of the divorce process is typically provided at each county superior court’s website.


Lisa L. Fiance, Esq.

Lisa L. Fiance, Esq. is a California family lawyer and divorce mediator and the owner of Epiphany ADR. The information contained in this article is intended as general information and does not constitute legal advice.  If you are considering divorce, you and your prospective spouse should consult with independent legal counsel in the state whose laws you want to govern your agreement.


 

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Collaborative Divorce FAQ’s

1. What is collaborative divorce?

Collaborative divorce is a family law process in which a couple who has decided to end their marriage is guided by their respective attorneys, and sometimes other specialists, to reach a mutually agreeable divorce settlement involving spousal maintenance, child custody and/or property settlement issues.

The collaborative process is also appropriate for parents who share custody, couples who want prenuptial contracts, as well as probate, employment, intellectual property and personal injury disputes.

2. How does it work?

First, both attorneys should be trained in the collaborative process. The couple signs a “Participation Agreement” that shows mutual commitment and disqualifies their attorneys from representing them should the matter later go to court.

Through a series of meetings, the couple determines and prioritizes their respective needs and interests. The couple may choose to have child therapists, divorce coaches, accountants or spiritual advisors present to offer guidance. Or, the couple may choose to have no one other than their attorneys present. They then work together to make financial arrangements, share responsibilities and/or coordinate schedules as necessary.

3. What if we change our minds?

If a couple decides to resolve their divorce issues, they may postpone the divorce without any papers having been filed in court. The cost of the process, the impact on the family, and the risk of publicity are all significantly minimized.

4. What if we try it and it fails?

Collaborative divorce is successful because it uses cooperative negotiation. However, collaborative divorces can still fall apart. A couple may reach impasse and decide to take their divorce to court. When this happens, both parties’ attorneys must withdraw from representation. The emotional and financial impact of starting over with new attorneys to litigate the matter is one incentive to seeing things through to the end of a collaborative divorce.

5. Are certain kinds of situations NOT good for collaborative divorce?

Situations that involve domestic violence, addiction, untreated mental illness or intention to cause emotional or financial pain are not good candidates for collaborative divorce and may be better suited to arbitration or litigation.

Avoiding a Sensational Divorce

The news is full of celebrity couples on the brink of divorce, including the latest victims Tiger and Elin Woods and Sandra Bullock and Jesse James.  While you may not be a celebrity, the same concepts that can help make these high profile divorces less public and painful can apply to anyone considering divorce.

The latest solution for divorcing couples is called collaborative divorce.  Collaborative divorce allows the divorcing parties to control the process and terms through a non-confrontational process, rather than proceeding through the notoriously bitter and expensive process of divorce litigation.

The Litigation Process

In litigation, each side’s attorney performs countless hours of financial research, and waits for the other side to produce their results of countless hours of research.  Parties file aggressive motions and petitions against the other, essentially “going to war” with the goal of causing as much emotional and financial injury to the other person as possible. In the end, there are relatively few forms to fill out, yet a divorce can drag on for years, all at the expense of the parties who are each trying to move on and start over.

And all too often, divorce attorneys are unaware or simply don’t care that the typical “adversary” style that works so well in the courtroom is actually fueling the fire of the already existing dispute.  Or are they unaware?  Arguably, it may be in a divorce attorney’s self interest to allow a divorcing couple to fight on indefinitely, since the attorney is being paid an hourly rate and the couple “needs to work out their issues” in order to find closure.  Of course, attorneys have ethical obligations to perform competently and diligently, and an ethical lawyer will not intentionally drag out a case for the sake of a higher fee.

The Collaborative Divorce Process

In collaborative divorce, parties agree at the outset not to take the divorce to court. The collaborative process emphasizes cooperation instead of confrontation, and problem solving instead of fault finding.  Parties agree to avoid confrontation for the sake of reaching a mutual agreement that leave their fates in their own hands, instead of in the hands of a judge.

Assisted by a trained collaborative attorney, the parties then mediate their financial, property and custody issues, and negotiate the settlement they want presented to the judge. Parties can agree to have any number of financial, emotional or spiritual advisors present to help, or parties may choose to use a single financial advisor to help maintain confidentiality of financial assets.

Benefits of Collaborative Divorce

  • Private and confidential – keeps private issues out of the public eye
  • Fast and flexible – couples decide how fast the divorce proceeds and who else is involved
  • Affordable – there is no need for a divorce to drag on for years
  • Reduces stress – benefits the adults involved AND their children
  • Parties control it – any settlement must be agreeable to both people
  • Forward-focused – focuses on solutions that allow both parties to move on
  • Positive – allows a peaceful ongoing relationship if parties so choose

Consequences of Taking a Divorce Public

  • Charlie Sheen & Denise Richards – This couple’s initially amicable divorce suddenly derailed when the media picked up on Sheen’s hateful emails and voicemails to Richards.  In response, Richards filed court papers publicly claiming that Sheen was physically abusive and addicted to gambling and porn. The couples’ two children were caught in the middle. Two years after starting the divorce, the couple settled for an undisclosed amount.
  • Christy Brinkley & Peter Cook – After ten years of marriage, news broke of Cook’s affair with a teenager he met in a toy store and this couple was headed for divorce court to resolve issues of child custody.  Cook hired a psychiatrist to say that Brinkley was “consumed by rage”. The report, however, showed that Brinkley should still get full custody of the couple’s two children. Brinkley, in turn, claimed that Cook was addicted to porn. The end result was a settlement for $2.1 million for Cook, with custody going to Brinkley, but the lasting effect on the two kids may not be known for years.
  • Paul McCartney & Heather Mills – After only four years of marriage, this couple announced plans to split in 2006.  Tabloids seized the opportunity to research Mills’ past, alleging that she was a prostitute and a gold-digger. In response, Mills accused McCartney of emotional and physical abuse.  A bad move, given the outpouring of public support for him that resulted.  Mills, however, still walked away with a settlement worth over $48 million.
  • Tricia Walsh (the YouTube Divorce) – When her husband Philip Smith, President of Broadway theater owners The Shubert Organization, “unfairly evicted” her from their Park Avenue apartment, Walsh decided to air her grievances in a 6 ½ minute YouTube video. The video publicly discussed the couples’ prenuptial agreement and described embarrassing private details about the couples’ sex life.  Three months later, a judge granted the husband a divorce based on cruel and inhuman treatment and blasted Walsh for her “calculated and callous campaign to embarrass and humiliate her husband”. Walsh received $750,000 but the eviction was upheld.