Jacqueline Newman, a divorce lawyer in New York City, starts every meeting with a new client by seeing if she can get rid of them. “The first thing I do is ask them if they’re sure. If they even pause for a nano-second, I say go see a marriage counselor,” Newman says. “Divorce is emotionally expensive, it is financially expensive, and it’s very hard to come back from.”
Which is one reason why, for the last four decades, fewer Americans are going through with it. Divorce, like marriage, is on the decline. The exception being those over 50, who are splitting at nearly double the rate as the same age group in the ‘90s. This is called Gray Divorce, a trend you’ve no doubt heard of in the last few years. Increasingly, it’s women choosing to end things.
LegalZoom estimates the average divorce attorney charges $270 an hour, so whether your differences are feeling irreconcilable or you’re just here for the voyeurism, read on for some free advice.
The Real Reason People Divorce Is Not What You Think
“People ask all the time: What causes divorce? I don’t think it’s the affairs or the money,” Newman says, adding that in her experience, relationships unravel when partners fight dirty — or not at all. “It’s really about communication and being able to get your point across. People know how to get along but they don’t know how to fight. People need to learn to behave themselves and not hit below the belt.”
You Will Be Frustrated (and/or Unhinged) for a While
Perhaps unsurprisingly, a massive life change can cause people to go a little crazy. Divorce “takes over,” Newman says, and can change people in unexpected ways. “People going through divorce are very narcissistic because they are in self-preservation mode.” She’s seen people act against their own – or their children’s — best interest, to the point that she tries to advise clients to prepare for the worst. “Usually they come back to their senses, but there will be a time period where they are so grossly irrational and contrary to who I know they are. You’re not divorcing the same person you married.”
Josh Brand, a family attorney based in Nashville, TN echoes this sentiment: “Things that you’re going to encounter in the divorce process are a lot of the reason that you are probably getting divorced in the first place. Expect to be frustrated by what the other party is doing.”
Court Can (And Maybe Should) Be Avoided
“People have this image of court; they watch it on TV and think we’ll settle your case by the commercial break, and that’s not how it works by any stretch,” Newman says. Particularly in New York, she says the courts are so overstretched, a happily-uncontested dissolution can still take six months to a year to come apart legally. Add in any complexities and you’re looking at another year or more. “People say, ‘he had an affair, he slept with my sister,’ and think the judge is going to care — not only will they not care, if you’re in a no-fault state, they won’t even hear it. The judge isn’t going to blink; they’ll see 12 of your cases that day.”
No-fault divorce means it doesn’t matter if one person was cruel, or cheating, or an absentee parent — you’re allowed to divorce whether or not that’s the case — but the proof of their cruelty won’t impact how you have to divvy things up. “Sometimes you have someone who gathered all this evidence, the receipts, or hired a private detective, and I have to say we aren’t even going to show the judge. It can feel unfair, but it doesn’t matter.”
It’s for these reasons that Newman says a “kitchen table” agreement is the best case scenario. Settling as much as possible through mediation to minimize the court proceedings saves a lot of time and boatloads of money.
Everything’s Gonna Be Split
“At the end of the day, divorce is a business transaction and that’s what it comes down to,” Newman says. “You always have this case where someone was keeping all this money in their sock drawer or their boot and I’m like, ‘Yeah, you’re still going to have to split that,’ and it’s heartbreaking.” Whether it’s boot cash, houses, or companies you’ve founded, it’s getting divvied up, and she notes the latter can be particularly awkward; you have to “get creative” or look to co-ownership with an ex.
Part of the calculus, for her clients, is that the statutes that determine how assets are divided are based on a certain income level that may not touch a couple’s financial reality.
For example, the formula to determine child support applies to the first $193,000 of combined income in New York. In Newman’s world, “That is basically the cost of two nannies — maybe just one that you like a lot.” And the spousal support cap is $241,000, so if someone’s making more than that, “you’re looking at lifestyle analysis. The judge may say it is really important that you have five Hamptons homes, or say, no, you get one and you have to ‘suffer’ through that.” In a scenario where there’s a lot on the table to divide up, there is not a lot of case law to rely on getting what you want.
Brand has seen this play out at the other end of the economic spectrum, too, where a family had reasons for working out a financial split skirting around child-support, but even though both parties were aligned, the court wouldn’t have it. “The way laws are written now can make it difficult for people to work up agreements that work for their lives,” he says.
Try to Let Go a Little (Or a Lot)
“I never cease to be amazed at people’s capacity for pettiness,” Brand says. Couples lose the forest for the trees, trying to stick it to one another by keeping all they can, rather than identify what they can let go in order to part ways and regain some peace. “People get so fixated on ‘winning the fight,’” which he says can be fruitless, particularly when it comes to disentangling all of the many small co-ownerships of a life built together. “Do I think you need to walk away with nothing, totally destitute? No, but whatever it is, it’s almost never worth the fight.” He caveats, of course, that your and your children’s safety is always paramount. “But, money is rarely worth the fight, especially if you’re still at an age when you can work. You can start over. You have a future — and sometimes you have a better future after divorce even if you start over with almost nothing.”
Divorce Like a Rich Person
Here are a few unique tactics Newman’s been steering her high net-worth clients toward.
- Hire a private judge to consult on your mediation process. “It’s not a cheap endeavour,” she says, “but it’s so helpful to have these former judges guide [clients] through the process and settle it.”
- Go to court for someone else’s trial. If you’re still expecting the Court TV experience, Newman says you can attend a trial or two overseen by the judge assigned your case to get a feel for their style. “Before you get your feelings hurt.”
- Strive for “a kitchen-table settlement” through mediation. “Having [your lawyers and mediator] battle out the money decisions is a million times easier than the hundreds of thousands you’re going to spend battling the entire process in court.” This is, in her words, the best case scenario. “If I was getting a divorce, I would not want to litigate. I’ll tell you that.”