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Divorce & Family Law Blog by Attorney Jamie Elmer of Berkeley, California

Why Are Divorce Cases So Expensive in California?

 Parties let their emotions drive the case

Parties let their emotions drive the case

Most divorce cases that really pile on the fees involve parties who are driven by emotions, triggered by the unresolved emotional issues in their relationship. [Likely stemming from unresolved family of origin issues.] It's rarely the lawyers who make the case expensive.

Simply, it is the inability to rise above these powerful, triggering emotions that drive people to irrationally litigate issues in family law and divorce cases, generating thousands and thousands of dollars in unnecessary legal fees and expenses. The legal case becomes an arena where the parties use the legal issues as a substitute for emotional discourse, and they attempt to hurt the other party, and are, in turn, hurt by the other party.

In addition, sometimes one or both of the parties are unconsciously not ready to let go of the relationship, and use litigation as a way to stay engaged.

 

One of the parties' unreasonable lack of cooperation and engaging in passive aggressive foot dragging

This is really related to the first reason, because the lack of cooperation is usually a passive aggressive attempt to hurt the other party.

Procedurally, much that happens in a divorce case requires the cooperation of the attorneys and parties. To the extent that one of the parties does not cooperate, the other party will have a lot more work to do pushing the case forward and often having to file repeated motions to get things done.

One of the dirty little secrets or vulnerabilities in divorce litigation is the inability of the legal system to effectively deal with the party who is determined to be uncooperative. Such people can even end up gaining benefits from being a real pain-in-the-butt litigant, as it is often cheaper and less emotionally traumatizing to placate them, or at least settle for far less than fully litigating rightful claims and issues.

However, to the extent that financial disincentives can affect such a person, the court does have the power to use monetary sanctions [sometimes quite significant] to punish such behavior. When a party does not care about financial considerations [either because of great wealth, or total lack of assets] it can make things very expensive for the other party, as the burden will be on them to take all the steps necessary to push the case to resolution.

Parties' unrealistic or vague expectations, and inability to compromise

Having, and being unwilling to give up, unrealistic expectations frequently results in more trips to court, and having contested hearings, which are expensive. There is the preparation time [and the required filing of motions/statements and/or briefs] and there is the court time. Also, where there is not a negotiated settlement, most courts require multiple status conference court appearances, and a formal settlement conference court appearance, even before trial.

Thus the difference in cost between a case where the parties negotiate and work out a settlement without going to court versus having to litigate any issue is enormous.

Unrealistic expectations result in more litigation because obviously the other side is less willing to sacrifice their position to meet these expectations, and pursuing unrealistic goals is often perceived as antagonistic which poisons the atmosphere for reasonable negotiation and settlement.

Areas where parties are often unrealistic are custody and visitation issues, and child and spousal support. Not surprisingly these issues are often very emotionally loaded. One parent often feels the other parent should not have any visitation or custodial time, or that their role should be restricted. Understandably, this is not usually well received, and often results in contested custody hearings. Sometimes parents with primary custody use custody and visitation as a means of control over and/or punishment of the other parent, leading them to be inflexible and uncooperative regarding custody and visitation issues.

In the area of support, people really hate paying support, and are often shocked to see what the statutory guideline amount for support is. In addition, determining the final amount of spousal support is subject to very subjective factors. Both of these factors can lead to very divergent views of the expected outcome. In addition, since child support is partially dependent on the percentage of custodial timeshare, the paying parent will often be motivated to litigate custody in hopes of reducing child support by gaining more custody time.

Unrealistic expectations usually result from emotional issues and not from a lack of proper advice.

Vague expectations on the other hand can be the result of poor lawyering, or the parties' unwillingness to look at reality. In either case the lack of clarity about expectations can significantly hamper negotiations or make litigating specific issuesmuch less efficient.

Finally, all settlements involve some compromise, and the inability to sacrifice or make compromises will always result in more, rather than less, litigation.

Failure to provide financial disclosure forms, and related documents in a timely fashion

Because these disclosures provide all the facts about the financial state of the marriage, their absence can create lack of clarity about resolution of the financial issues, and therefore result in delay and/or increased litigation expenses.

Nobody likes filling out the statutorily required financial disclosures which consist of an income and expense declaration and a schedule of assets and debts. Both of these forms require supporting documentation such as two months' worth of pay stubs, and the most current monthly statement for anything financial including checking, savings, mortgage statements, credit card accounts, retirement accounts, and investment accounts. [And the two most recently filed federal and state income tax returns].

California law requires that the exchange of financial disclosures must be done before trial, and before any settlement is signed. Thus, if the disclosures don't happen, the case does not get resolved.

And sometimes parties provide the required information and/or documents piecemeal, and by the time all the documents and information have been provided, some of them are out of date, and then new updated documents and information need to be provided.

Okay, once in a while it is the attorneys; but it's mostly about personalities and not just making the case more expensive out of self-interest

Rarely, a particular attorney has an abrasive personality, or other emotional problems that can get in the way of cooperation and negotiation. Naturally this can result in a lot of added work, expense and litigation. Additionally, sometimes even good, well-meaning attorneys get overly enmeshed in their clients struggles, and they too can get caught up in unrealistic expectations or acting out unresolved emotional issues.

Some cases are just complex, or there are disputed facts or honest differences of opinion

Sometimes the case is expensive to litigate just because of the kinds of issues, or the complexity of the issues, factual disputes, or honest differences of opinion. In my experience these are the rare cases, and usually the parties have enough money to make it worth their while to litigate them, because even when cases are complex or disputes held in good faith, if there's not enough money or assets, reasonable minds will find a way to work out a settlement.

CONCLUSION

Divorce cases get expensive primarily because of unreasonable behavior usually resulting from emotional issues causing the parties to be more interested in hurting one another rather than resolving the logistical issues involved in the case. Unrealistic or vague expectations of how the case will or should be resolved can also lead to prolonged and hence expensive litigation. Less frequently, party's lack of diligence in supporting the attorney can also lead to delay and make the case more expensive. Then there are those cases that just by their very nature are going to be expensive.

Over 30 Years Experience as a Divorce Attorney in Berkeley, California

Martin "Jamie" Elmer is a divorce and family law attorney in Berkeley, California, with over 30 years experience representing clients in Northern California. For questions, or to schedule a free initial consultation to discuss the specifics of your family law legal matter, please call our Berkeley office at (510)-644-2411 or fill out our online form.

Jamie Elmer