If you watched your own parents duke it out in the ’70s or ’80s, this is probably the first type of divorce that pops into your mind. An adversarial divorce, also known as a litigated divorce, is the stereotypical divorce often portrayed on television, with lawyers battling to get their client the biggest slice of the marital pie. Although fewer than three percent of divorces in the United States actually go to trial, the adversarial divorce is the most likely to end in a courtroom.
In this type of contested divorce, each spouse hires an attorney and the couple is not actively involved in the divorce settlement. Rather, the attorneys work on their individual client’s behalf to come up with a final settlement that covers the division of assets, alimony and/or child support, and child custody issues. In this situation, the spouses never have to be in the same room or talk to each other during the divorce process.
The attorneys, not the clients, go through a process of gathering and exchanging information, pulling in expert opinions and working toward a settlement that both parties can agree to. If the attorneys cannot reach this settlement without involving the courts, a judge will decide how to divvy up the marital assets, award spousal and/or child support payments, and dictate the terms of the child custody arrangement.
The adversarial divorce may be the best option for couples with severe power imbalances, for victims of domestic violence, or for couples who cannot agree on any aspect of their divorce settlement.
Casey Hatton, a San Francisco-area attorney and now a Wevorce trainer, has represented several clients involved in adversarial divorce cases and says many couples are in a situation that demands a litigated divorce. “In cases where there is a huge inability to negotiate — if one spouse is violent or mentally ill — an adversarial divorce is probably the best option,” Hatton says. “But most people don’t fall into that category. Most people are going to be able to come up with some type of agreement.”
In fact, when it came time for her own divorce, Hatton chose the adversarial route. “My case was one of the cases that needed the [divorce court] system,” Hatton says. “Because there could be no meaningful negotiations between us, this approach worked for me.”
Although it may be the only option for couples that are unable to negotiate with one another, the adversarial divorce comes with high financial and emotional costs.
As its name implies, adversarial divorce pits spouses against one another. Couples go from “partners” to “adversaries” and an already tense situation can become unbearable. Studies show that these types of high-conflict divorces can have an extremely negative effect on the couple’s children, placing them at a higher risk of behavioral and academic problems. Additionally, an adversarial divorce can ruin other relationships in your life, as extended family members and mutual friends feel like they are being forced to “pick sides” during your divorce battle. ;
Cynthia First, a Seattle-area divorce attorney with more than 25 years’ of collaborative family law experience, says adversarial divorces often leave people feeling cheated.
“People do not believe that their story has really been heard” in this type of divorce, First says. “Someone else is making a decision for them and it often results in a solution that is unsustainable or doesn’t focus on what is important to them.”
Many people believe that going to mediation during a litigated divorce will help them reach a better solution, but First says the mediation process in an adversarial divorce has its fair share of problems.
“Mediation in a litigation situation is intended to get the case settled. People can be in mediation for eight hours or longer. They are exhausted. Their blood sugar may be low — ;or high. They may not have the energy to think,” First says. “They want to get it over with — ;even to the point of sacrificing their own needs. They feel pressured to make a decision and may have had their own needs chipped away little by little during the process.”
First says many couples soon realize that what they agreed to in the litigated divorce does not look anything like what they really wanted. Many people come away from the process feeling resentful and unhappy with want to change the agreement. “Some want to change the deal the next day!” First says. “I never make my client sign a settlement agreement the same day for these reasons.”
This type of divorce is the most expensive way to end a marriage. The average adversarial divorce in the U.S. costs $20,000 to $40,000. However, these costs can rise dramatically for couples with high levels of conflict. Consider that each attorney will charge an average of $350 per hour and then factor in the time it takes each attorney to prepare for the initial hearings, conduct a formal discovery process, attend meetings with the other lawyers, gather expert opinions, draw up a settlement and come to a formal agreement. And, if your case is one of the few that goes to trial, the costs go up even more. The longer the process drags on, the more expensive the divorce. Some couples spend upwards of $100,000 on this type of divorce and wind up losing an enormous chunk of their marital assets to attorney fees and court costs.
Editor’s Note: Many couples are confused by the issue of attorney fees. When an attorney charges a retainer fee of $2,000, many clients mistakenly believe ;the retainer will get them through their entire divorce. It is common, however, for a retainer to last only a matter of weeks — ;or even days — ;leaving couples with their attorneys’ steep hourly fees yet to be paid.
If you choose litigation over mediation, do so with your eyes open. Start by asking your prospective attorney three simple questions before handing over your retainer.
- How much time will my divorce take?
- How much will it cost?
- What will my spouse's lawyer say?