The High Costs of Litigating Divorce — Spodek

One of the first questions I am asked as a divorce attorney is, “How much will it cost to get divorced?” Given all the unknowns in each different case, I am not able to answer that question precisely, but I can say with conviction that it will cost less to come to a resolution without litigating. The only guarantee when litigating a divorce in New York courts is that it will burn a hole in your wallet. If you were to ask someone who has been through a divorce litigation about the difference between the original settlement offer and the final settlement or court order, you’d likely discover that any difference was offset by the costs of the drawn-out litigation process.

Below are a few real-life stories of litigating divorce in Manhattan (where legal fees are high). These may sway even the least compromising potential litigant to negotiate, mediate, or enter into a collaborative divorce process rather than “have his day in court.”

In the first case, a wife filed an action for divorce in court after 18 years of marriage and three children, despite the husband’s request to mediate. The husband and wife each used $25,000 from their marital funds to retain an attorney. From there, they proceeded through the court system, conducting extensive financial discovery and depositions, filing and responding to motions for temporary support while the action was pending, and attending court hearings and conferences. Custody matters were settled in the first year of litigation, but financial matters remained unresolved.  

The trial, which had been postponed several times, was set to commence more than two-and-a-half years after the summons for divorce was filed. The parties settled at the 11th hour on terms that were minimally higher than the husband’s offer made 18 months prior — an offer that had never received a formal counteroffer. In the end, the parties spent just over $1 million on professional fees, including legal fees, forensic accounting, and a forensic psychological evaluation of the family, which is ordered by New York courts when there are unsettled custody matters. The fees expended represented as much as 10 to 15 percent of the couple’s marital assets and would have been significantly higher had the trial proceeded. Certainly of no less importance are the two-and-a-half years of uncertainty the couple’s children suffered during the extended litigation. While the case has now settled, the couple and their lawyers are drafting and exchanging comments on the settlement agreement, and the final papers for the divorce have not yet been signed or filed. Once everything is finally complete, it could still take up to six more months to attain a divorce judgment. That’s over three years from the commencement of the divorce action!

In the second case, a husband and wife made the decision to divorce and each of them hired an attorney. The wife requested mediation or collaborative law, but the husband was not interested. The parties attempted to negotiate a settlement through their lawyers for approximately four months and, when no meaningful progress was made, the husband commenced an action for divorce. More than two years later, after a costly and invasive psychologic forensic evaluation ordered by the New York court since custody was not resolved quickly, and a court-appointed attorney for the child, the couple finally signed a custody agreement, but the financial matters remain contentious. The psychological evaluation cost more than $15,000 and the aggregate fees to the child’s appointed attorney were more than $100,000.

The parties continue to attend court hearings and have not yet been given a trial date. They have conducted extensive financial discovery, including the production, copying, and review of years of credit card statements, bank records, and tax documents, as well as multiple-day depositions. The husband is now considering the previously rejected offer of mediation after total costs have swelled significantly — and no motions have been filed! The settlement terms still being discussed are very similar to the terms on the table two years prior.  

In this last case, the couple had been married for three years and had one child. The wife was an alcoholic with emotional problems and, as the husband described it, negotiation and mediation were untenable as the circumstances were extreme and the case was destined for litigation. A Family Court action for neglect ran parallel to the action for divorce in Supreme Court. After three years of litigation, $50,000 in fees for a court-ordered forensic evaluation, including $7,500 per day for the psychologist to testify at trial, over $40,000 for the attorney for the child, and at least $200,000 in aggregate attorneys’ fees for both husband and wife, the family was financially destroyed. The husband estimated that a day in court cost between $7,500 and $10,000, depending upon how many lawyers were present on a given day. In the end, the husband was awarded sole physical and legal custody of the child, while the mother would have gradual visitation, which was essentially the same deal on the table three years prior.  

Divorce is an emotional process, and certainly, staying levelheaded and letting cooler minds prevail is difficult. Nonetheless, potential divorce litigants should consider leaning on friends and family or getting a good therapist to help them stick with an out-of-court settlement process. If you work to end the marriage on amicable terms, you may even find that it sets a more positive tone as you begin a new chapter of your life.

This article is made available for informational purposes only by Kimberly Gantcher Spodek PLLC, and should not be construed to be formal legal advice. By reading this article, you understand that there is no attorney-client relationship between you and the firm. The content of this article should not be used as a substitute for obtaining competent legal advice from a licensed professional attorney.

Kimberly Gantcher Spodek is a member of the DailyWorth Connect program. Read more about the program here.

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