The million dollar question for any family law attorney or divorce mediator — and the feared million dollar answer is “how much does a divorce cost?” The cost of divorce can be staggering. Most spouses considering divorce do not understand the full scope of legal fees they will incur until it is too late.

The primary factor that impacts the cost of your divorce is the process spouses choose to get divorced. This choice will either promote a cooperative, lower conflict experience, or cause an adversarial divorce war.

In divorce, the only factor that causes time to drag on is conflict. The more conflict, the more time. The more time, the higher the cost — that is, if you are billed by the hour. But, divorcing spouses have choices.

Spouses seeking divorce may be hurt and angry with one another. They may anticipate the worst from their spouse and feel afraid. They may even resist the idea of getting divorced. However, spouses must beware of how an emotional propensity toward fighting — although legitimate and understandable — can create devastating financial consequences for themselves, and their children, aside from the obvious psychological effects.

Unavoidable Fees

In Arizona, court filing fees are required to finalize the divorce or legal separation process with the court. The Petitioner’s fee is filed at the beginning of a case and in Maricopa County, is currently three hundred and forty nine dollars ($349). The Respondent’s fee is paid later and is currently two hundred and seventy four dollars ($274). These fees fluctuate over time, and by county so it is strongly recommended that you ask your mediator or attorney about accurate current fee requirements.

Attorney’s Fees: The Large Retainer and Hourly Billing Problem

In the litigation process, also known as the “court process,” each spouse will typically hire their own attorney to represent them. This means that spouses are no longer advised to directly communicate with one another. Instead, attorneys communicate with one another on your behalf. We believe this in itself accounts for substantial miscommunications and misunderstandings that lead to increased conflict, and thus, increased legal fees.

In Phoenix, Arizona, and surrounding Maricopa County, like other major metropolitan areas, attorneys generally require an initial “retainer” of somewhere between $5,000 to $15,000 from each spouse, as they are representing you individually. A retainer is a large upfront payment to the attorney in order to guarantee that they will have at least this minimum payment from their clients. Attorneys will then bill by the hour against the retainer. They track the amount of time they spend working on the case and the retainer amount dwindles down. They control the time they spend on your case, and thus, how quickly they use your retainer.

The average hourly attorney fee is between $300 – $400 per hour. Once the retainer has been exhausted, the client will be required to replenish the retainer back to its original amount and the attorney will again bill against the retainer for time spent on the case until the money runs out.

Attorneys, and mediators, who bill hourly are likely to bill for any and all time spent on your case. This includes any time spent with you, but the vast majority of your legal fees will be incurred behind the scenes: When your attorney writes you an email, the fee clock is running. When he or she reads an email you send them, they are billing you too. The fee-clock is running for every moment that your attorney or their assistants draft any documents, make phone calls related to your case, research issues, drive from point A to point B, wait during long delays in the courthouses, as well any other time they spend working on your case.

Litigation Costs: $15,000 – $20,000 per spouse for an average case

The more conflict in a divorce, the more time attorneys spend on the case. The more time, the more fees. As a result, most Arizona divorce attorneys will estimate that for a relatively straightforward case with modest assets and children, in which divorcing spouses have moderate conflict, the average cost of divorce is $15,000 – $20,000 per spouse.

When low to moderate conflict escalates — which is often true in the litigation arena — more protracted litigation that lasts a year or more can result in attorneys fees that easily soar over $50,000 per spouse. When these cases go all the way to a trial where a Judge determines the outcome of all issues, final legal fees can exceed — and in many cases, far exceed — $100,000.

Wealthy spouses and high income earners are not the only ones walking away with this level of divorce debt. In fact, we see that spouses with relatively modest assets and average incomes are most often faced to live their worst nightmare once their high conflict divorce is final: the proceeds from their home — thier one major asset and perhaps the issue that spouses fought over most — are paid to attorneys to cover fees, rather than shared between spouses.

Divorce Mediation: 80% – 90% less expensive than litigation

In divorce mediation, your mediator will either charge by the hour like an attorney, or charge a flat fee for the entire process. Either approach is overwhelmingly likely to result in spouses paying less for their divorce as compared to the cost of litigation in court.

Many mediators who come from backgrounds as career attorneys or judges continue to use the hourly billing approach within their mediation practice. However, there is a growing trend in the field to break from traditional attorney billing practices, since mediation is rooted in different goals and values than those that exist in the adversarial court process.

Mediation Costs: The Flat Fee Solution

We are strong proponents of the flat fee approach. A fundamental problem with the divorce system in America is that attorneys and mediators earn fees based upon the amount of time they spend working on a case. Time in any case is a result of conflict during the divorce process. Therefore, whether intentional or not, divorce professionals financially benefit when conflict escalates and continues in a divorce case. The longer a case drags on, the higher legal fees climb.

Our main concern is not that professionals would intentionally take advantage of this dynamic, but that the mere existence of a system that demands large retainers and hourly billing is not beneficial to families. Scores of research show that children are emotionally harmed when parents fight during their divorce. Thus, any fee structure that may incentivize fighting is not ideal in a family law context, when increased conflict between parents can cause direct harm to children. Professionals should be free from even any subconscious or unconscious motivations to cause increased conflict between divorcing spouses. Fee structures for divorce should be “motivation-neutral” from the mediator’s perspective, or if anything, support a process where efficient resolution is encouraged.

Legal fees should also be as predictable as possible for divorcing spouses. Divorcing spouses often times face financial challenges. What spouses need is to fully understand the total cost of their divorce process from the very beginning of the process. Predictions too often wind up being inaccurate and place spouses in a terrible position when less than halfway through their process they have already exceeded what was originally quoted by their attorney or mediator.

For example, at The Aurit Center for Divorce Mediation, we inform potential clients at their free initial consultation of their total flat fee for the divorce mediation process from beginning to end. This includes all mediation meetings, document drafting, emails, phone calls, memos, editing of documents, signings, travel to and from court for the clients — everything related to the case. The only possible additional fee would occur in the rare case that spouses need more than the set number of mediation meetings for their case — and this per additional meeting fee is minimal. In this way, spouses know the cost of their divorce before they even begin the process.

Ask Questions about Fees, and Expect Straightforward, Honest Answers

When interviewing potential mediators or attorneys, be sure to ask how their fee structure works. If a flat fee is being offered, ensure that the fee includes the entire process, including all drafting and the filing process. Flat fees in piecemeal for different parts of the process, or flat fees that do not include emails, phone calls and research may signal a red flag.

Your divorce professional should give you simple, straightforward, and honest answers to your questions regarding fees. In the end, most important factor — regardless of whether a mediator uses an hourly billing or flat fee model — is the level of trust you have in the mediator to guide you through the process, treat you as fairly when it comes to fees.