NEW YORK (MainStreet) — If a storefront divorce is not going to cut it — or cut it fairly — is your only option to plunk down a $25,000 retainer fee? Not if you and your spouse are both motivated to save cash and can be reasonable (granted, this last part is deceptively simple).
If you and your soon-to-be-ex can stand to be in the same room, you might do well with mediation. Mediation rests on the premise that nobody knows what is best for a splitting couple better than the splitting couple themselves, says lawyer Ellie Wertheim, who practices mediation with her partner Abby Tolchinsky in Manhattan and Westchester. Mediators don’t prescribe a fair solution; they simply facilitate negotiations between the two of you until you arrive at a solution.
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The upside here is that you have authority to shape your own custom-designed agreement. The downside is that even though many mediators are also lawyers, they will not advocate for either of you during the negotiations.
For this reason, the best mediators will require or strongly recommend that both of you consult an attorney at some point. Nobody wants to find herself out with friends months after their agreement was signed and hear, “Oh, honey, you didn’t you know you were entitled to half of his 401(k)?”
“You need to know what you might be entitled to under the law,” Wertheim says, “even if you don’t choose to act on it.”
Many couples in mediation will have “consulting attorneys” on the side who can educate them on certain points before they going into the mediation room on their own. They may consult once or several times during the process. And, since a consulting attorney usually charges by the hour, he or she will still cost you less than a litigator on retainer.
Duration and cost
Mediation is by far the cheapest route to divorce. Most mediators charge between $200 and $400 per hour, and on the average will meet with a couple for six to 10 sessions to bring the split across the finish line. Conceivably this means you could unhitch yourselves for $1,200 to $4,000, not including outside attorney fees, or the document drafting costs (those data input fees). “Soup to nuts,” Wertheim says, “expect to spend between 10,000 to $15,000 for the both of you.”
“The key with mediation,” says Alyssa Rower, litigation attorney at one of the country’s top divorce firms, “is that both members in the couple have equal power, and an equal understanding of the big picture.”
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Collaborative divorce law
If there is a power imbalance or economic imbalance between you (think: hedge fund manager vs. grade school teacher), you are better off with more heft in the way of legal support. Still, you might not have to go for the heavy firepower of a top litigation firm. Over the past 10 years, a new field called collaborative divorce law has gained a lot of ground in the U.S. The theory behind “collaborative” is that whenever possible it's advantageous to keep the focus on settlement. If 99% of litigation divorce cases settle out of court, why embark on the costly (not to mention combative) process of preparing for court? In collaborative law, you and your spouse essentially vow to stay out of court, but each have your own lawyers.
“What collaborative law does,” says Katherine Eisold Miller, who runs a collaborative law firm in New York, “is take what’s good about mediation and what’s good about litigation and create a process for an out-of-court settlement where both parties are represented by counsel.” Because the lawyers are barred from litigating, they have skin in the game to work things out, Miller says.
Duration and cost
On the whole, the collaborative process can take anywhere between three to 15 meetings, Miller says, and can stretch from weeks to several years. In general, expect to spend between $15,000 and $20,000 each, or up to about $40,000 in total. Unless, of course, one or both of you threatens to go to court.
“If negotiations break down in collaborative law, you’re in trouble,” says Ann Diamond, an attorney at Aronson, Mayefsky and Sloan in New York. When that happens, you will have to leave your collaborative attorney and start all over with someone new, namely, a litigator. At that point, you’ve not only lost your investment in collaborative law fees, but you’ll have to plunk down the big fat retainer on top of that. Ouch.
Elise Pettus is the founder of UNtied, a website for women navigating separation and divorce. Check out the site's free monthly info and events.