How to Beat the High Cost of Divorce

July 2, 2007 — -- Estimates suggest that 50 percent of all people who get married stay married.

Good for them. This is about the other half: the ones for whom the dream of till death do us part wind up in the reality of divorce.

A couple thinking of uncoupling these days faces a wide range of choices: from a full-blown litigated custody battle, to a mediated settlement, to a quick click on No Fault Divorce Online, a Web site that promises a fast and easy divorce for as little as $28.95.

So how do you choose the divorce that's right for you?

Clearly many couples will be lured by the promise of a cheap and painless digital divorce. And an online service might be the right choice if you've been married for a short time (less than two years) and don't have any children.

But proceed with caution.

"The key to the $29 divorce is two people communicating," said Ellen Zack, a family law attorney who practiced in Boston for 26 years, and is now a consultant "If you can sit down at your kitchen table and set aside your anger, fear, sadness and terror and say let's work this thing out, then maybe you can do it."

Unfortunately, that's hard for many couples, she says. "Most people don't communicate very well and when you're getting a divorce you don't want to sit down across from your spouse and talk. I used to say my job was one part lawyer, one part clergy person and 98 parts psychiatrist."

The online sites are generally document-preparation services. They don't offer legal advice or counsel and you must be in complete agreement with your spouse on all the issues. Fees range from less than the cost of a tank of gas to a couple of hundred dollars, but either way it's far less than the cost of hiring a lawyer.

The emotional cost of a divorce has been well documented. What hasn't been as openly discussed is the dollars-and-cents price tag attached to the average divorce. The simple fact is: It's expensive.

Middle Class Squeeze

According to Gaetano Ferro, president of the American Academy of Matrimonial Lawyers and a practicing lawyer in New Canaan, Conn., the middle class is feeling the squeeze: "It's very hard for the middle class to get divorced these days."

Why? In part, because the cost of litigation has skyrocketed and because the modern divorce can be very complex. "In the good old days, we would say 'Give her the house and you keep the pension,' but now there are issues about executive compensation, valuation of hedge funds. We have to hire forensic accountants," Ferro said. "It's like night and day."

Still, Ferro said, if you're thinking of hiring a lawyer don't do what most people do and hire "that guy their brother-in-law recommended."

Find someone you feel comfortable with and hire that person for an hour or so. Most lawyers will charge a consulting fee to take the pulse of the case. Expect them to offer some basic advice and an outline of how to proceed including details of a retainer.

In Boston, as in other major cities, the hourly rate for a highly skilled senior family law attorney is as much as $600. That means a contentious custody battle could easily cost $75,000 to $100,000.

"When you decide to get divorced, it's not just a legal issue. It's a social, religious, psychological issue. It has many dimensions," said Elayne Greenberg, a lawyer based in Great Neck, N.Y., who specializes in mediation and conflict management.

Gambling in Court?

Greenberg said the most common mistake couples make is to assume that justice is an absolute.

Each party firmly believes that if it gets its day in court, it will be vindicated. But, according to Greenberg, going to court is a gamble. "Justice can be elusive," said Greenberg. And, she adds, more than 95 percent of all divorce cases end up being settled out of court. "There's a reason for that."

Even though it's tempting, resist the impulse to run out and hire that famous "attack-dog" divorce lawyer you've heard so much about. "They're in pain and they're hurting and they're afraid of getting screwed and they feel powerless, so they reach out and get a lawyer … but getting a lawyer doesn't always have to mean getting a warrior."

Greenberg advocates trying to talk to your partner before you rush to the experts.

"Sit down at Starbucks or your kitchen table and talk about the issues. You might find you can come to an agreement on most things and then if you have one big thing you can't agree on then take that to the mediator. It will save you a lot of money." And, Greenberg adds, couples could consider spending the money they save on some therapy.

Other Options

In fact, there are two well-regarded, economical and low-conflict options: mediation and collaborative law.

In a mediated divorce, the spouses take the lead in discussing financial and custodial issues surrounding the divorce. The mediator helps resolve any outstanding conflicts and then draws up a memorandum of understanding.

Both parties should also hire a lawyer to look at the final agreement. If all goes well, that agreement becomes the basis for the legal divorce decree. It's almost impossible to put a dollar figure on the "average" divorce but a mediated settlement can cost about $5,000.

The more cutting-edge legal offering that's generating a lot of buzz is called collaborative law. A couple and their lawyers -- trained in collaborative law -- sign a written agreement that they will settle the case without litigation. Both spouses have lawyers to advise them of their best interests, but the emphasis is on cooperation, not combat.

The costs tend to be much lower than a traditional divorce because the process is faster — often wrapping up in as little as four meetings. If, for some reason, the parties can't reach an agreement, the attorneys must resign and the couple have to hire new lawyers. The price tag, which varies widely, is in the $10,000-15,000 range.

This is all very familiar territory to Stephen Serio of Milton, Mass. He divorced his wife in September 2005. They had been married for seven years and have one child. The couple tried both mediation and litigation. According to Serio, the sticking point wasn't custody but cash — specifically financial issues surrounding his business.

"We went to a mediator, which, for us, was a waste of time and money. We couldn't come to an agreement," Serio said. As with many couples, there were emotional issues as well.

"I had moved on years before and she saw the final divorce as really admitting failure. But when the marriage is over, really over, I think both parties just have to look at it as a business transaction because it is. You're dividing the assets and all you're talking about is money," he said.

Serio says his divorce cost him about $25,000, but he doesn't regret the price. "I married the wrong person. This isn't the 1950s and stuff happens. Should I stay miserable and married and waste the rest of my life or try to rectify a terrible mistake? It's [divorce], not the end. "

It can also be a new beginning. Serio remarried last year, and he and his new wife are expecting twins in October.