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The high cost of divorce.

A concern for many families is the rising cost of living. Unfortunately, that cost seems to rise even faster when a marriage breaks down. Many people have a hard time living within their means even where there are two income earners in the same household. When a marriage breaks down, supporting the family in two separate homes makes the task even more difficult.

Unlike businesses, which usually budget for anticipated annual legal and professional costs, marriage partners and families do not budget for these things. When there is a divorce or relationship breakdown, the legal costs can become one more unwelcome burden.

In September 2003, in an article entitled "The Going Rate 2003", Canadian Lawyer Magazine reported the results of its annual survey of legal fees. The results were gleaned from lawyers across Canada who voluntarily sent in their responses to the survey. The respondents reported the following ranges for fees:
Uncontested Divorce $540-$1,610
Contested Divorce $2,600-$18,900
Separation Agreement $540-$2,470
Child Custody and Support $1,490-$13,990

In Alberta, the respondents reported the following average costs:
Uncontested Divorce $1,740
Contested Divorce $23,730
Separation Agreement $2,500
Child Custody and Support $15,950

The highest cost for a contested divorce reported by the Alberta respondents was an astounding $150,000. The range that respondents reported for an uncontested divorce, or what most people would call a simple divorce, was between $820 and $2,620.

Those involved in the legal process often seek to have their former mates pay their legal costs as part of the divorce proceeding. In negotiated settlements, where the parties reach an agreement through the negotiating efforts of their lawyers, the costs of the other party are usually the last thing that a former mate will agree to pay. Lawyers traditionally tell their clients that they will be expected to pay their own costs.

Where a court application is necessary, a court can order that the party who lost the court matter must pay the other party's costs. However, in family law matters, the results of a court application or trial are often mixed. For instance, one of the parties may win on the issue of the custody of the children, but the other party may win on the issue of the amount of support. In these cases the courts will often decline to direct that either party contribute to the other's costs because neither of the parties will have emerged as a clear winner.

If the court finds one of the parties to be the winner, costs may be awarded against the unsuccessful party, who then has to pay the court ordered costs to the other party. However, these costs are limited to the amounts set out in Schedule C to the Alberta Rules of Court. For instance, Schedule C provides that the limit in all uncontested cases is $500 plus disbursements. This obviously would not pay all of someone's court costs even in the simple divorce. The balance of the costs are the responsibility of the client, regardless of his or her success in court,, whether in simple or complex cases

Statistics Canada's most recent results, released in May 2004, show that in Canada in 2002, 37.6 out of every 100 marriages ended in divorce prior to the 30th wedding anniversary. In Alberta that number is 41.9 out of every 100 marriages. The Statistics Canada study also showed that custody of children was granted through court proceedings in 28% of the divorces granted in 2002.

Given the extraordinary number of marriages ending in divorce, and the rate at which custody is resolved through court proceedings, it seems almost foolhardy for families not to budget for legal costs. If you knew there was a four in ten chance that within 30 years your house would be broken into, besides taking insurance against the loss, wouldn't you take other steps to minimize the risk and the attendant costs?

What can be done to minimize the legal costs of a divorce?

Get informed

At a time when you may find yourself least able to make decisions, due to the stress and emotions of marriage breakdown, you will be asked to decide things that will impact you for the rest of your life. Information is power. Find out as much as you can about the divorce process, the law, and the financial aspects of your own and your former mate's situation. Ask your lawyer for a reading list. Go to the public library. In Alberta, if you have children, attend the mandatory free Parenting After Separation course as soon as you possibly can. Being in the midst of a divorce can be a frightening situation, and the more information you have the better position you will be in to make the right decisions for yourself and your family. Educating yourself will reduce the time your lawyer will need to spend to educate you.

Get clear

In a stressful situation, people often act in a fearful manner. When emotions run high and trust is gone, it is not uncommon to fear that a former mate has the worst possible intentions and will do the worst possible things. As communication is usually strained, neither party is likely to feel able to ask for understanding from the other party, nor to understand his or her actions. Instead, the tendency is to imagine the worst possible motives. In reaction to this fear, people often take the offensive. This is usually not productive.

Instead, take the time to determine what is motivating your actions. Is it fear? Anger? The desire for retribution? Ask yourself if your expectations of the divorce process and the other side are realistic. If you have children, ask yourself if your actions are truly in the best interests of your children. Learn how to communicate clearly and how to listen to the other side. If you live in Alberta, consider taking the free Focus on Communication in Separation course offered through Alberta Justice and Family Mediation Services. You take this course by yourself without your former partner. The easiest way to reduce your legal costs is to be in a position to instruct your lawyer in a clear way without being unduly influenced by your emotions of the moment.

Get organized

The legal process requires a lot of information, especially financial information. Although the process may seem daunting, take the time to get familiarized with your financial information. Gather up all of the information you can attain regarding your own and your former mate's income, assets and debts. This should include those assets which you had at the date of marriage, or which either of you received outside of either of your own efforts during the course of the marriage, for example, gifts from third parties, inheritances, damages for personal injuries, etc. Organize the information as best you can. Make copies of all the necessary information to give to your lawyer. If you have difficulty with this, ask someone with more financial ability or understanding to help you wade through the papers. The more organized you are, the less time your lawyer will have to spend trying to decipher the information.

Get the right supporting players

Find a healthy support group or person. You may find that you will need some counselling to help you through the situation. Some people find that divorce adjustment groups work well for them. Avoid seeking emotional support from anyone or any group who has not fully made peace with his or her situation. Angry, bitter people will not help you to a better emotional state.

Finding the right legal professional is as difficult as finding the right medical professional. Ask people that you know and respect for their recommendations. Make arrangements to talk to the professional. Find out what his or her philosophy is in helping people in your situation. It is hard to second guess your lawyer, so make sure that he or she is someone who listens to you and understands where you are coming flora. Does his or her approach make sense to you? If your thought is to resolve matters outside of court, it would be a mismatch to retain a lawyer whose only thought is to take the matter to court. At the end of the day, you are the one who has to live with the results. The process you go through in finalizing your divorce and other matters such as custody, access, support and division of property, will impact how you, your former mate, and your children will do in the future.

Get information and consider alternate methods of dispute resolution

Consider ways to stay out of court. Avoid positional bargaining. Sometimes this can only lead to an agreement once everyone is equally unhappy. Consider the merits of interest-based mediation or negotiation, where a concerted effort is made to find options that meet everyone's needs and interests. In Collaborative Family Law, the clients and their specially trained lawyers form a settlement team and formally contract not to go to court. Like Collaborative Family Law, mediation can be a very efficient way to resolve your disputes because the two people who have to say yes to any agreement and who have to live with the outcome of any agreement are the two people at the decision-making table. In mediation, you and your former mate share the cost of a neutral mediator, who works directly with you and the other side. Your lawyer does not come to the mediation meetings, but you have the advantage of" being able to consult your own lawyer to advise you when needed. Your lawyer can also help you in advance of the mediation by advising you of your legal rights and liabilities as well as discussing with you your best and worst alternatives to a negotiated agreement. He or she can also help you prepare for the mediation by explaining to you how to assert your needs and interests. By this process, you can drastically reduce the emotion, time, and financial costs of a divorce.

While there are definitely situations where expensive legal proceedings are unavoidable, there a re many things that you can do to help keep the costs down. As one lawyer suggests to her clients: "You can spend your money to take your kids to Disney land ... or mine." The choice is yours.

Marla S. Miller, Q.C. is a Registered Family Mediator and a Registered Collaborative Family Lawyer practicing with Miller Boileau Family Law Group in Edmonton, Alberta.
COPYRIGHT 2004 Legal Resource Centre of Alberta Ltd.
No portion of this article can be reproduced without the express written permission from the copyright holder.
Copyright 2004 Gale, Cengage Learning. All rights reserved.

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Title Annotation:Feature on the costs of Marriage Breakdown
Author:Miller, Marla S.
Geographic Code:1CALB
Date:Aug 1, 2004
Previous Article:Today's trial.
Next Article:The pension riddle.

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