After 38 years as a divorce attorney in Westchester County, New York, I can state with absolute certainty that divorce court is toxic, sometimes comparable to descending into Dante’s “Inferno.” It was my hellish experience in divorce trials that drove me to explore collaborative divorce and mediation, and, ultimately, to become a settlement specialist. Most divorce cases can and should be done collaboratively or through mediation. Once in a while, though, a trial is necessary.
Such was the case when a man crossed my threshold several months ago, having represented himself in preliminary divorce court proceedings. The trial “train had already left the station,” so to speak, and this man was going to have to face his wife’s attorney in court, with himself as his only legal representation. Three weeks before the trial, he realized that it would be wise for him to get his own attorney, and so he asked me to take on his case.
This man’s case looked like it would be relatively simple because it involved a short, five-year, childless marriage. So I agreed to take on the case.
I soon learned that both the husband and wife had a lot of investment activity, which made the case much more complex than I had anticipated. Moreover, I had to work very quickly, because the judge in the case – based on the man’s representing himself – decided to “streamline” the process by combining the completion of disclosure of financial records with the actual trial. (Normally, the financial disclosure happens at least three months before the trial date.)
Without going into a detailed discussion of the issues, let me just say, this case, like most others, could have been resolved more efficiently and at less cost to both parties, if it had been done collaboratively. In short, if done collaboratively, the attorneys’ fees to both parties combined would have likely been between $5,000 and $10,000.
The trial, on the other hand, consumed $25,000 in fees to me, alone, because so much more time (“billable hours”) was involved. And a trial is a huge risk: there is a wide range of possible results, depending on how the judge rules on the evidence, determines the facts, and interprets the law.
I did get a good result for my client. The judge agreed with our argument that the husband deserved 60% of the non-retirement assets because of the “active/passive asset” theory. In this case, my client proved that the investment assets appreciated in value because of the work he did, as opposed to market forces. So the court ruled that the valuation date was the date of commencement of the divorce action instead of the date of trial. As a result, my client retained 100% of this appreciation in value.
But the story doesn’t end here. The wife is going to appeal the case, which means that my client will have to pay at least another $15,000 in attorney fees if he wants to have me defend his wife’s appeal.
Moral of the story: Think long and hard before rejecting the options of collaborative divorce or mediation.
