Is Divorce Always Expensive?
Not necessarily. That’s not to say there won’t be costs involved, but it doesn’t have to break the bank. Total costs and fees will depend in large part on how complex your case is, how much your attorney charges, and whether you will incur additional costs for experts or mediators. But generally, resolving issues such as spousal support (alimony), child support, custody and parenting time (visitation), and property distribution is almost always within your control. The more you and your spouse can settle on your own, the less expensive the divorce.
Unfortunately, when a marriage has deteriorated, there’s usually a good deal of animosity between the spouses. This can lead to an unwillingness to compromise or even discuss issues. If that’s the case, all bets are off because both spouses will likely hire attorneys and head into court. In these types of contested cases, the divorce process can last well over a year, which can add up to skyrocketing legal fees.
Alternatives to Divorce
If you’ve concluded that you can no longer stay in your marriage, but don’t have the financial means to engage in a contested divorce, there are a number of paths you can take, depending on your particular circumstances.
Simple Separation
Separation, without any legal intervention involved, can be relatively painless, at least financially. You and your spouse just decide to go your separate ways. This solution is most viable when you have virtually nothing to fight over: no children; no property of any real value; and, no need for financial support.
But even in this scenario, there are pitfalls. You can walk away, but you’re still married, and thus bound by the legal obligations marriage imposes. At the very least, this could leave you liable for debts your spouse may incur, particularly necessary medical expenses. The extent of your liability, if any, depends on where you live. (For more information on this, click here.)
Cases where couples have nothing, however, are the exception. Usually there are children and at least some assets. These are issues the separating spouses will have to address. Even if one spouse claims to want nothing from the marriage—not even parenting time with the children—that spouse will continue to be responsible for providing child support.
In these circumstances, if the couple can’t settle outstanding issues, particularly child support, they will likely have to apply to the courts for a resolution. If you end up in court for a legal separation, there's no guarantee that it won't be as time-consuming or costly as a contested divorce, and you remain legally married.
Legal Separation
People often confuse a "legal separation," with a long-term separation, where a couple decides to live apart but also enters into a formal “separation agreement” (or “property settlement agreement"), which is essentially a written contract that addresses all the outstanding issues in the marriage.
However, in most states, couples can actually file for a legal separation in court, which requires more than just a separation agreement between the spouses. Filing for a legal separation involves all of the same legal procedures as a divorce.
Click here to learn more about the differences between the various types of separation.
Separation Agreement
When properly drafted, a separation agreement is a legally-binding document that covers all of the marital issues pending between a separating couple, which can include:
- child custody issues
- child support
- alimony, and
- division of property and debt
Although you're still married, the separation agreement will now control your spousal rights and obligations. For example, you and your spouse can make agreements about who will live in the home, how much time each of you will spend with the children, who can use the family home, and how marital bills will be paid.
To be valid, a separation agreement must pass legal muster, so most people ask an attorney to draft their separation paperwork. And to ensure there are no mistakes and no coercion involved, both spouses should have their own attorney review the agreement with them. Legal fees will depend on how much the spouses are able to accomplish on their own. If they have to hire attorneys to negotiate every settlement term, the costs will quickly increase.
If you do enter into a separation agreement and ultimately decide to get divorced on the same terms spelled out in your agreement, the court may consider your divorce case “uncontested” and simply adopt the terms of your separation agreement. This allows you to get divorced quickly and with minimal additional expenses.
Filing for Legal Separation
Many states allow spouses to file a lawsuit for legal separation, which is identical to a divorce, except the court won't terminate marital status. All other aspects of a legal separation case will mirror a divorce case in court. You must file a petition for legal separation and have it served on your spouse, you must exchange specific financial information, and you must decide all relevant issues, such as custody, child support, alimony, and property division. If you and your spouse can't resolve these issues, a judge will do it for you. At the end of your case, you will receive a judgment that declares you to be legally separated. But note, you are not legally single. You will no longer be considered married, but you are not free to remarry unless you request a divorce.
If you already have a separation agreement—or you and you spouse are able to enter into one—then you won't need to ask the court to hold any hearings or trials to make decisions for you. But the judge will still need to review your proposed agreement and grant your request for a legal separation.
Private Mediation
The mediation process uses a third party to help spouses settle their marital issues without having to go to court. A certified divorce mediator is typically an attorney or financial expert, trained in dispute resolution. This is a method couples should consider if they think they can compromise and both want to avoid the courtroom, but feel they need assistance in reaching a settlement.
The goal of mediation is to get the spouses to a point where they’re able to resolve all their issues and then incorporate that resolution into a separation agreement, thus resulting in the “legal separation” referenced in the previous section. Spouses provide pertinent information and documentation to the mediator in advance (like tax returns, pension information, and property valuations), and then meet with the mediator, usually a few times, until they come to a meeting of the minds.
Typically, the mediator will prepare the separation agreement. But, again, the spouses should each have their own attorney review the agreement with them. And, the mediation sessions are not free. The spouses will have to pay the mediator, as well as any fees for property appraisals, pension evaluations, and any other similar services. But this process is usually much less costly than divorce. Additionally, the fees are often divided evenly between the spouses, unless they agree to a different payment ratio.
The “Collaborative” Process
The goal of the collaborative process is to work toward a legal separation. However, instead of addressing the issues on their own, or with a mediator, the spouses each have an attorney representing them and engage in a series of "4-way" negotiation sessions to come to a resolution. The procedure also typically utilizes various “neutral” specialists, agreed to by the spouses, such as, property appraisers, psychologists (especially for custody cases), and accountants.
The problem with the collaborative process is that, although it might save money in the long run, it can be quite expensive because of the professional personnel involved. So this may not be the ideal solution for couples with limited financial means.
Despite your concern about costs, it could be worth your while to at least meet once with a knowledgeable divorce attorney to determine your legal rights, obligations, and options when contemplating ending your marriage.