By Neil Kozek, Esq. and Michelle Lewis, Esq.
If there is one constant across nearly all matrimonial cases, it is that the process is very expensive. This has given rise to many jokes (Why is divorce so expensive? Because it is worth it…) and to a pervasive suspicion of lawyers. Clients often feel a lack of control over the divorce process and an even greater sense of helplessness.
Clients’ lack of control over their divorce and their legal expenses are both exacerbated in litigation. Interaction with the court leads to the involvement of judges and courthouse staff. If spouses cannot agree on custody, an Attorney for the Child and Forensic Evaluator may be appointed. The Court may also order appraisals of valuable assets. When spouses are unable to agree on interim financial and living arrangements, their attorneys must file costly motions. These motions take months to resolve, cause professional fees to skyrocket, and delay the ultimate resolution of the case.
As litigators, collaborative attorneys, and mediators, we have identified several factors that can have immeasurable impact on the financial and emotional cost of the divorce.
Choose the Most Appropriate Process for your Needs.
Whether spouses choose to collaborate, mediate or litigate disputes, their mutual goal is almost always to reach agreement regarding the same issues:
- How much time each will spend with their children;
- How they will make important decisions about their children;
- How the costs of raising children will be paid (child support);
- Whether spousal support is necessary, in what amounts and for what duration;
- Who will live in the marital residence and whether it will be sold;
- What is marital property and how will it be divided;
The means divorcing couples employ to reach agreement about these and other issues varies widely.
Some couples can reach an agreement resolving all or most of the above issues at their kitchen table. These exceptional couples need attorneys to advise them of the law, identify and help negotiate any areas they neglected to address in their informal discussions, and to draft an agreement and divorce documents to submit to the court. This is generally the least costly way and most efficient way to separate and divorce using attorneys.
Other couples may be well suited for mediation, a process that typically involves a single neutral professional to facilitate a settlement and independent review attorneys to advise each spouse, to ensure each understands the agreement fully, and to address any unresolved issues. Couples who mediate generally share a commitment to resolve their differences out of court. When successful, mediation can be a cost-effective and efficient means to reach a separation agreement. Typically, spouses who are most appropriate for mediation are both well-informed about the values and the identity of all assets and liabilities and are somewhat aligned regarding what is best for their children. Some level of trust, while often eroded by the acrimony of a troubled relationship, is a bonus to the success of any mediation.)
For couples committed to avoiding litigation and attracted to holistically reaching an agreement, Collaborative Divorce is an excellent option. Collaborative Divorce Practice (CP) involves working with an interdisciplinary team including a financial neutral (when identification, valuation and division of assets and liabilities exist) and a mental health professional to help resolve parenting and communication issues. The CP’s team approach fosters cooperation and communication, increasing the chances of a successful negotiated resolution. It is also often less costly than litigation.
Finally, where a total breakdown of trust and communication has occurred, as well as in cases involving domestic violence, child abduction, and other emergencies, it may be necessary and prudent to retain attorneys for litigation. Litigation is typically the most expensive and time-consuming option for separation and divorce, but as explained below, there are ways to control your legal fees even if you find yourself in a litigated process.
Choose an Experienced Attorney Who Shares Your Values and Goals.
Your choice of attorney may be the most important decision in shaping the course of your divorce, so be sure to seek out an attorney who has a reputation for working to preserve the relationship between divorcing spouses and minimize acrimony. Try to avoid attorneys who reflexively adopt an adversarial posture that deepens negative feelings, polarizes, and fosters mistrust.
Attorneys who exclusively litigate usually view each case as a prospective litigation and may not seek opportunities to find common ground and reach agreement out of court. Some litigators may even seek to gain an advantage in litigation by encouraging exaggerated claims of verbal or physical abuse. While we believe these professionals are few and far between, prospective clients should be aware of attorneys who seem to encourage behavior that would inflame rather than quell the fires of marital conflict.
Attorneys who mediate and/or practice Collaborative Law are often inclined to encourage dialogue and, in a collaborative setting (or even a litigation), to work cooperatively to resolve issues without court intervention. Some litigators may also practice in a “collaborative spirit”, litigating only intractable disagreements.
When consulting with an attorney, explain your goals. If you want to avoid litigation, ask the attorney what percentage of his or her cases require court intervention and how many trials he or she does each year. The information can be very telling. If you believe that your case will require a tough trial lawyer, make sure the attorney you choose is comfortable in court and has successfully conducted many trials. If, on the other hand, you want to prioritize an amicable resolution with your spouse and/or you have minor children and want to preserve a civil relationship, select counsel who settles most cases out of court and strives to avoid adversarial proceedings.
There is no “best” attorney for every client, but there is a best attorney for you. The attorney-client relationship is very personal and the person you choose walk this road with you should be someone you can communicate with and a person in whom you place a great deal of trust.
If you ask the right questions and explain your priorities to any prospective attorney, you increase your chances of retaining the most appropriate attorney for your divorce. Making a well-informed choice upfront can save you from disappointment and frustration, and in the long run will also save you legal fees.
Be Conscious of How You Use Your Attorney’s Time.
1. Do not Use Your Attorney as A Therapist Unless You Can Afford To.
Attorneys are also considered “Counsellors” and often serve in an advisory role. The process of separating and divorcing is one of the most difficult times of most people’s lives. Fear, grief, rage, disappointment, guilt, and shame are common emotions during this disorienting time. Family law attorneys want and need to understand the story of your marriage and the reasons for your decision to transition. It is natural for attorneys and clients to form an emotional bond, and many attorneys are naturally empathetic to their client’s concerns. However, clients sometimes involve their attorneys in emotional issues and family dynamics that may not materially impact the outcome of a settlement or trial at great personal expense.
While turning to your attorney to meet emotional needs might offer some fleeting comfort, as both a cost cutting measure and for achieving optimal mental health, we urge our clients to seek out a qualified therapist during the divorce process. Many therapists accept insurance and even those that do not rarely charge rates comparable to family law attorneys.
2. Communicate in Writing When Possible.
We have noticed that clients who frequently call our office to ask questions or update us about new developments tend to have bills that are appreciably higher than those who send emails to convey the same information. Some phone calls are necessary, for example when discussing settlement proposals or preparing together for a court appearance. To save on legal fees, however, clients should ask themselves “Can I convey this information in an email?” before calling their attorney.
3. Aggregate Your Questions and Concerns.
Whenever possible, cost conscious clients should aggregate questions and concerns and send fewer emails to their attorneys instead of sending individual emails. Because attorneys typically bill in six -minute increments, each email will potentially cost .1 billable hours, even if it only takes two minutes to read and respond. To address non-urgent matters, the most cost-effective emails address multiple topics using shorter, more concise questions. It is easier to convey a great deal of information in an email that can be read in six minutes or less than in a phone conversation or in multiple emails.
4. Negotiate Interim Issues Whenever Possible.
If you find yourself in a litigated divorce process, there are still ways to meaningfully save on legal fees. One of the most important is to resolve interim issues that need to be decided before a full agreement is reached, or a trial conducted. An agreement about payment of counsel fees during the litigation, parenting time, temporary support, responsibility for ongoing expenses, and occupancy of the marital residence saves substantial legal fees by avoiding costly motions and court appearances and potentially shortening the timeframe for the litigation. Similarly, even if all issues cannot be settled before trial, resolving as many issues as possible will save time and money by limiting the issues to be decided by a court. This also gives clients the ability to customize a resolution in a way that Judges simply do not have the time or ability to do.
5. Perform Cost Benefit Analyses Throughout Settlement Negotiations and Have Realistic Expectations.
Among the most common mistakes clients make in settlement negotiations is failing to consider the legal fees that will be incurred without a settlement and naively believing that the judge will rule in their favor at trial.
It is ingrained in our culture that the “good guy” should win has after having his “day in court”, but virtually every spouse is convinced that he or she is the “good guy” and will “win” in court. Most attorneys naturally align with their clients and whether deliberately or inadvertently, reinforce the client’s belief that “the truth” or “the law” is on their side.
While judges certainly do their best to achieve justice and ascertain the “truth”, the outcome of litigation is often bitterly disappointing to one or both parties. This disappointment arises from having clung to the myth of “justice served” and “good guys win”.
When assessing a settlement offer, do not compare the offer only with what you (or your attorney) believe a court would do or what your spouse “deserves”; rather realistically weigh the cost of saying “yes” to the offer against the anticipated costs of trial and the risks of allowing a court to decide the issues.
As we often tell our clients, sometimes it is better to give a spouse more than he or she “deserves” instead of incurring hefty additional legal fees and “rolling the dice” in court.
6. Identify Underlying Interests.
One mistake that often leads to wasted legal fees and trial is the tendency of both spouses to adopt and remain locked in two diametrically opposed positions. One wants to stay in the house; the other wants to sell. One wants to keep the children in private school; the other wants to move them to public schools. When spouses adopt mutually incompatible positions, it seems like there must be a “winner” and a “loser” and only the court can decide which role each spouse will play.
However, if spouses can identify the interests that underly their positions, it is often possible to abandon the “win/lose” paradigm and create solutions that meet both spouses’ needs. The desire of one parent to stay in the house (a position) may be motivated by a desire to offer stability to the children and allow them to maintain their schools and friendships during a time of transition (interests). The insistence on selling the house now (a position) may reflect the other parent’s concern that he or she cannot afford to pay the expenses of the house while establishing a new household of his or her own (interests).
In a negotiation that looks at these underlying interests, solutions that meet both parties’ legitimate needs – whether they involve refinancing the mortgage to lower the monthly payments, a stay-at-home spouse returning to work to help pay living expenses, or an agreement to maintain the house for a limited transition period while the children adjust to the separation – can be reached.
7. Adopt Reasonable Positions Using Objective Criteria.
Another huge contributor to out of control legal costs is positional bargaining. In positional bargaining, each side stakes out an extreme position and then move closer and closer to agreement through a prolonged negotiation process. To shortcut this process, we recommend adopting a reasonable position based on objective criteria (support formulas, caselaw, etc.) at the outset and sharing your criteria with the other side. Negotiating from a place where each spouse is within a justifiable range of outcomes based on measurable criteria saves time and legal fees.
8. Do not Sweat the Small Stuff. Be Generous.
One of the most common pet peeves of the family law attorneys is being asked to negotiate the division of personal property such as furniture, family photos, rugs, dishes, etc. Apart from high-value, collections, art, antiques, and important jewelry, most tangible objects do not have sufficient monetary value to justify paying legal fees to resolve the dispute. Yet clients often insist upon using counsel to battle about these sentimental or symbolic objects. Spouses are advised to weigh the cost of using attorneys to divide tangible items, to arrive at a fair method to divide household furniture and furnishings such as an alternating selection process, and to adopt an attitude of generosity whenever possible.
Conclusion
In sum, the client has far more control of the process than it may first appear. The savvy client will choose an attorney with whom communication is clear, trust is established early, objectives are identified quickly and the process choice for resolving the dispute is discussed at the very first consultation. He or she will adopt reasonable positions and the professionals involved in the negotiation will seek to find common ground and solutions that work for both clients.
Attorneys can and should advocate for their clients without being adversarial. Effective and efficient communication will save time and money and will likely avoid unnecessary and protracted litigation. The path to closure takes many twists and turns. Choose the attorney who walks beside you on that journey carefully. It will make a significant difference in both your financial security and your emotional health.
Mr. Kozek is a litigator, collaborative attorney, and founding member of Kramer Kozek LLP, a boutique Matrimonial Law Firm practicing in suburban and metropolitan New York City. He is a Fellow of both the American Academy of Matrimonial Lawyers (AAML) and International Academy of Family Lawyers (IAFL), a pioneer of New York’s trend toward out-of-court dispute resolution which includes founding the New York Association of Collaborative Professionals (NYACP )and serving on the Board of Directors of the International Academy of Collaborative Professionals (IACP). Mr. Kozek has been recognized in Best Lawyers in America, Top 25 attorneys in Westchester County, and is rated “AV” by Martindale Hubble as pre-eminent in both ethical standards and legal ability. He lectures and has written extensively on the topics of divorce, Collaborative Practice and Alternative Dispute Resolution (ADR).
Ms. Lewis is also a member of Kramer Kozek LLP where she concentrates her practice exclusively on Matrimonial and Family Law matters, focusing on Collaborative Divorce, Mediation, Mediation Review and Litigation. She currently serves on the Board of Directors of the NYACP. Ms. Lewis began her career in ADR while focusing on Family Law and earning her Juris Doctorate from Harvard University prior to joining Kramer Kozek. Ms. Lewis recently received accolades for her pro bono service to separated and divorcing spouses from the Legal Services of the Hudson Valley. Ms. Lewis has been practicing law since 1998.
Mr. Kozek and Ms. Lewis are both active members of the Family Law Sections of multiple bar associations including the Westchester County, Westchester County Women’s, American and the New York and New Jersey State Bar Associations. Both have been recognized for their achievements in Collaborative and Family Law by New York Metro Super Lawyers.
For additional information about Neil and Michelle or to learn more about Kramer Kozek LLP, their website is kramerkozek.com and the firm’s main number is 914-683-3500.
By Asia Dent
