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The Fear Factors

Of all the major decisions that can affect a person's life, certainly divorce would be ranked one of the highest. After all, everything we have or that brings us joy in this life can either be categorized into family or possessions and few events effect these two things like a divorce can. It is easy to see why divorce causes so much stress in a person's life.

I have listened to hundreds of questions that divorcing couples have asked me regarding what to expect in a divorce. I have determined that most of the questions that are asked are a result of one of three concerns. I have labeled these concerns the "Three Fear Factors."

By far the most common concern a person has in a divorce is "Am I going to get a fair deal?" The second biggest fear people have is "How much will this divorce cost?" and the third biggest fear people have is "How long will my divorce take?" I would like to talk about these 3 fear factors in detail and suggest some ideas to try and minimize these fears.

Everybody knows somebody who got "screwed" in a divorce. In fact, I think if you talked to any person who went through a divorce and asked them about the outcome you would be hard pressed to find anybody who was overjoyed at the outcome and felt they got a fair shake.

Either they felt that the custody or visitation was unfairly awarded by the judge or they felt that they should have not had to pay so much alimony or maybe they should have been entitled to more equity in the home. The fears people face on how fair the outcome will be are very real and can be a great cause of stress.

To appreciate this fear one must understand the process of how a litigated divorce works. In a litigated divorce you have Petitioner (the person who initiates the divorce process) and the Respondent. They both hire an attorney to represent them and pay that attorney to try and persuade a judge in a way that will get them the best deal possible. Keep in mind, the attorneys do not make any of the final decisions, only a judge can do that. That attorney will use the existing laws and guidelines to build a case and present that case to the judge. Sometimes that means the attorney not only has to make their client look good but also has to make their client's spouse look bad. This is what happens in courts all day with divorces.

Now it should also be mentioned how judges feel about divorce cases. I believe it is safe to say that divorce cases are the least favorite type of cases that a judge likes to hear. It was Chief Justice Howe that said, "The current legal system is ill suited for family law issues." He said that because judges hate to tell people how their kids should be parented and make rulings on who gets to keep the lava lamp! That is why judges repeatedly tell representing attorneys to tell their clients to mediate or settle. If a person wants to have any control on the outcome and how fair it will be then a courtroom is not the place to roll the dice. The outcome of a divorce depends on the attorney one gets, the judge one gets, and the interpretation of current laws by that judge on that day. How much money and time a person has to spend will also affect the quality of representation their case gets. That is simply the fact!

If this sounds like the stock market or a game of darts it is because it is. The disadvantage of the litigation process is 2 fold. Number one a person gives all control of all that is precious to them to an attorney and a judge. Win, lose, or draw they still get paid. Number two: people are at the mercy of so many intangibles that it makes it impossible to predict accurate outcomes.

So the question becomes how can a person increase their chance of getting a fair outcome in a divorce. The answer is keeping control of the divorce decisions. As soon as a person turns it over to the legal system, they might as well take their chances in Wendover. I will talk later of how people can keep the control of their divorce and minimize this fear but first I will address the fear of "how much will this divorce cost?"

I do not know of any formal research done on the average cost of litigated divorce but I have read many articles that claim that $15,000 was the average cost per person. This of course depends on two things. How much the attorney charges and how long it will take. Most attorneys ask for an up front retainer. I have seen these range anywhere from $500 to $10,000. The attorney then begins to work on the case and draws from that retainer. If the money runs out then the attorney may ask to allow them to lien the home to guarantee the fee. The gated divorce costs is never known until the judge signs the decree.

In a mediated divorce you pay a flat fee up front. This fee is determined by the mediators based on the complexity of the divorce. Rarely do the fees exceed $3,500 total and most of the time can be handled for less than $2,000. This is total not per person. "Have seen good mediators save divorcing couples thousands of dollars and help them reach much better agreements with parenting and financial issues…that the outcome is much better than in court." (Gayanne Schmid Family Law attorney in Salt Lake City). The advantage of this concept is it allows the couple to come to each session focused on getting a fair agreement. If it were done on an hourly basis there would be a tendency to want to rush the process to save money. That could mean a bad agreement. If the mediators are any good they should be willing to charge a flat fee.

This fee will also usually include the use of "Divorce Specialists." If a divorce has complex issues like pensions and equity in a home or retirements then the mediators will bring in a specialist in that area for instance a Certified Financial Divorce Planner or a Mortgage Specialist. These parties can ensure the couple is educated when making decisions.

The third biggest fear people have when going through a divorce is "How long will it take?" It is easy to understand why this is such an issue. People in general want to avoid conflict and have peace in their life.

Nothing disrupts peace in a person's life more than a divorce. It is natural to want to "get back to normal" as soon as possible. It affects your productivity at work, your relationships with friends and family and if you have children a long drawn out divorce can be devastating. It is not uncommon for a moderately complex divorce to last 12-18 months. Many last over 3 years. This is plain foolishness!

The reason that a litigated divorce lasts so long is for 2 reasons. The first reason you can do nothing to change (unless you mediate your divorce) and that is you are at the mercy of the courts availability. There are over 1,500 divorces or modifications filed each month in the state of Utah. The courts are clogged with cases and getting a court date can take months. The second reason is simple. The more disagreement in a divorce the longer it will take.

As mentioned before mediation is a proven alternative to litigation which can allow a divorcing couple to get their arms around these fears and make them much more manageable. Mediation gives the control back to the couple and still gives them the assurance that by using mediators that have extensive training in family law issues and experience in conflict resolution, they can still reach an agreement that is fair and legally binding. This process is considerably less money than the litigated divorce and can be completed in weeks instead of months or years.

Divorce is a scary thing but times have changed and there are many more options available to couples that can minimize these fears and allow couples to move on with their lives and be productive and happy.