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Specialty tag(s): Pre-Divorce Guidance, Divorce

What Increases the Cost of Divorce? Essential Insights You Need to Know

Tom Trahan | August 29, 2024

Among the most critical factors determining the cost of a divorce is conflict between the parties. This article addresses why conflict inflates the cost of a divorce, how Texas has designed the family law system to reduce conflict, and ways in which each party can save costs by reducing conflict.

Conflict Equals Higher Costs

Conflict increases the costs of any civil litigation, including divorce and child custody cases, because conflicts are resolved by taking the issue to the judge or jury for a decision. A hearing or trial requires hours of attorney time to prepare pleadings, research legal issues, conduct fact-finding discovery, and prepare testimony and exhibits. Most judges in North Texas set strict time limits within which a hearing or trial must be conducted. To properly present a client’s case within these restraints requires careful planning. Actual courtroom time is a small part of the attorney time needed to conduct a contested hearing. Even after a hearing, additional time is required to prepare and negotiate a proposed order for the judge to sign. Our lawyers, and most members of the family bar, bill for the time spent on a case. Each issue in conflict requiring a hearing or trial to resolve leads directly to higher attorney’s fees for both parties.

Divorce and child custody cases often have a hearing on temporary orders in the first 60 days to resolve initial child and property issues. This is an expensive phase of the case. A case involving an emergency hearing (for a temporary restraining order) may require two hearings in that time – at almost twice the cost.

But any issue not resolved by agreement will eventually end in a hearing or trial – along with the accompanying expense. One side not answering discovery – hearing. Dispute over whether an expensive watch is a gift (separate property) or a purchase (community property) – trial. Even if both parties and both attorneys are acting in good faith and playing by the rules, when the parties cannot agree, the dispute ends up at the courthouse.

Texas Encourages Agreements

The courts and the legislature in Texas have long understood that the court system cannot support a trial in every case. The public policy of the state also encourages agreed resolution of cases because the parties have some control over the outcome and are therefore usually more satisfied with the result. In Fiscal Year 2022, more cases in Texas family courts were resolved by agreed judgments (33% of all cases resolved) than by bench trials (28%) or jury trials (0.6%).[1]

The courts use the following tools to encourage agreements:

• Requiring Alternative Dispute Resolution in most cases before trial (usually mediation);
• Providing for stricter enforcement and privacy of agreements; and
• Promoting Collaborative Law (also known as Collaborative Divorce), a non-litigation method of case resolution.

In addition, the law writes its preference for agreement into the orders issued by the courts. For instance, the Standard Possession Order for parenting time of the children starts with “IT IS ORDERED that the conservators shall have possession of the child at times mutually agreed to in advance by the conservators, and, in the absence of mutual agreement, it is ORDERED that the conservators shall have possession of the child under the specified terms set out in this Possession Order.”

Even when a case comes before a judge for a hearing, the court will encourage the parties to agree as much as possible to narrow the issues actually in dispute. A party who refuses to agree on housekeeping or minor issues will often have a more difficult time in court.

Peace without Appeasement

Family law cases involve high emotions and serious, personal issues. Rarely does the government intervene in decisions about where the children attend school or whether your home must be sold. People will have strong emotions because relationships are ending and because no one knows better the buttons to push to anger you than your spouse. At Goranson Bain Ausley, we recognize these emotions and do everything we can to both acknowledge them and deal with them constructively.

But clients can control their own behavior in the case and by doing so, reduce conflict and expense.

1. Prepare mentally. Most of us know when a family crisis is brewing. To better handle the crisis, seek advice and support from those you trust. Be proactive in supporting your own mental health – see a counselor or seek spiritual guidance.
2. Take care of yourself. Stress and emotion can be relieved with exercise, sleep, and eating well. A quiet break for coffee or to listen to music can cut your tension.
3. Don’t poke the bear. You know the issues and words that set off the other party. Even though making him or her mad may be emotionally satisfying, it is rarely productive. If your case is most likely going to end in an agreement, being agreeable is a better strategy.
4. Order peace from the menu. Be clear with your attorney when you want to seek agreement on an issue. The attorney works for you. If you tell them to try to resolve an issue in a friendly and respectful way, if possible, they will. (Or you might need a different attorney – different attorneys have different skill sets.)
5. Stand up for yourself – courteously. Often an opposing party or attorney needs to see that you mean business. Especially early in a case, a hearing is sometimes necessary to show the other side that you will fight for what is right. But in doing so, we encourage clients to remain courteous. Losing your temper in front of a judge usually signals a weak case. Remaining strong and respectful within the system leads to better results.

One unreasonable person can make a fight.

At the end of the day, an agreement requires all parties to consent. There are times when a party refuses to be reasonable and a hearing or trial is necessary to resolve an issue or even the entire case. We will prepare you for that and work to keep case expenses within your budget. If you are concerned with the cost of a particular strategy in your case, it is your right to understand how much we anticipate the cost will be. Please ask. We perform better as a team when you make informed decisions.

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[1] Annual Statistical Report for the Texas Judiciary, FY 2022 – Page 9.