Getting divorced can be expensive. Here are some tips on how to keep costs down and budget accordingly.
You may have recently decided to get a divorce. Now, you may be thinking:
“How much will my divorce cost?”
As a matrimonial attorney, I get that question a lot. While some expenses are straightforward (e.g., the fee to file your complaint with the court, an attorney’s hourly rate), predicting the total cost of a divorce often depends on five key factors.
1. Do you and your spouse get along?
Just because you’re getting a divorce, it doesn’t necessarily mean you both can’t communicate about the terms of your separation. In some cases, litigation in court can’t be avoided. However, the vast majority are resolved by a settlement agreement. The more issues you and your spouse can resolve amicably, the less you’ll spend on legal fees and court costs. If you can put your emotions aside and be open to compromise, you’re already ahead of the game!
2. How much will it cost to hire an attorney?
While the rules governing legal fees vary from state to state, most attorneys charge by the hour. In fact, in some states, attorneys are prohibited from charging a flat fee for a divorce. To my knowledge, the average hourly rate of a matrimonial attorney typically ranges from $150 to $450, depending on location and experience. Most attorneys will request a retainer up front; its amount is usually based on the attorney’s hourly rate, the number of hours the attorney anticipates he or she will spend on your case, and any potential costs paid from the retainer. Once the retainer is exhausted, you may be expected to pay an additional “replenishment” retainer. Prior to representing you, your attorney should provide a fee agreement outlining what expenses will be paid from your retainer and what you can expect to be billed for. Before you sign the dotted line, however, ask your attorney:
- Will court costs and expenses be paid from my retainer, or is it my responsibility to pay them directly? In Massachusetts, it costs $220 to file your official Complaint for Divorce with the court (including filing fee, surcharge, and summons). However, expect additional charges if you need to have a constable or sheriff serve your spouse. Your attorney may also charge for copy costs and postage.
- What’s included in legal fees? It’s customary for attorneys to bill for the time they spend on your case, but what exactly is included? Many are surprised to learn that attorneys routinely bill not only for legal research and drafting court submissions or proposed agreements, but also for reading and responding to emails and making phone calls. Billable hours are generally broken down into 10 billing increments of six minutes each (e.g., six minutes x 10 = one hour). For example, if your attorney’s hourly rate is $300 and you spend 15 minutes on the phone with him or her, you will likely be charged $90 for that phone call (15 minutes = .3 x $300). Also, as frustrating as this may be, if your attorney spends a total of five hours in court, but four hours of that time is waiting for the judge to hear your case and only one hour is actually in front of the judge, you’re likely to be charged for the whole five hours plus travel time to and from court. It’s easy to see how quickly a retainer can be depleted when two attorneys are going back and forth exchanging information and negotiating a settlement. Since you’re being charged by the hour, be smart about which issues you authorize your attorney to negotiate on your behalf. For example, while your bedroom set may have sentimental value to you, it rarely makes sense to pay an attorney a couple hundred dollars an hour to fight over some used furniture.
3. Is mediation a less expensive option?
Instead of hiring separate counsel, some couples choose to use one mediator to resolve their disputes. Mediation can be an excellent alternative to conventional litigation; however, keep in mind that a mediator is not your attorney, and he or she cannot advocate for you. Also, in many states, a mediator cannot prepare or file the paperwork needed to actually complete your divorce, so you will likely still need to retain a separate attorney. That being said, if you can settle your case in mediation and then retain an attorney to review and finalize the paperwork, it may still be more cost effective than the traditional divorce process.
4. Do you need experts?
In addition to court costs, mediation costs, and attorneys’ fees, resolving your case may require expert opinions.
- If you have real property, you may need a professional appraiser to calculate your home’s value. Also, if one person is keeping the marital home, that person may need to refinance the mortgage to remove the other spouse’s name, and they may have to pay to have a new deed prepared and recorded with the county clerk. These costs vary depending on where you live.
- If you or your spouse has a business or one person works “off the books,” you may need a forensic accountant to calculate the value of a business or to ascertain you or your spouse’s true income for support purposes. Since evaluations can be costly, you may want to ask if the accountant charges different rates for a preliminary report to assist with settlement negotiations versus a comprehensive report to be used for litigation in court.
- If custody is an issue and you have concerns about one person’s mental health or substance abuse, you may need a custody expert. Again, costs vary greatly depending on where you live, whether you are using a court-appointed or private expert, and how detailed the report is expected to be.
- If you have a retirement account that needs to be divided, an accountant or actuary can calculate the marital portion subject to distribution and also prepare a Qualified Domestic Relations Order (QDRO) to divide the account post-divorce.
5. Is it cheaper to stay together?
Believe it or not, many people stay married because the cost of a divorce is simply too prohibitive. The majority of Millennial couples living in the Northeast are contributing two incomes to one household. Presumably, once divorced, you and your spouse will have the same amount of income coming in, with two roofs to support. Maintaining the same lifestyle you once enjoyed as a married couple may not be possible. Someone may have to get a second job to increase income or you both may have to downsize to reduce expenses.
If a divorce is in your future, you should certainly discuss all possible costs and expenses with your spouse and your attorney before starting the process. In the majority of cases, if you’re willing to compromise and take your emotions out of the equation, the better off you will be financially.
Kristin M. Capalbo is a family law attorney based in New Jersey.
This post is not legal advice and does not create a confidential attorney-client relationship. It is being offered for informational purposes only. For personalized advice, consult a family law attorney in your area.
Read more in our Grownup Divorce series: