Strange as it may seem, the divorce process is not focused on what went wrong in the marriage. Typically courts spend only minutes on the "ground" for divorce-- the legal reason why the parties are entitled to a divorce-- but they spend days dividing up the parties' money. This means that the parties' grievances about the marriage will be addressed in only the most perfunctory fashion, but those grievances will lurk in the background and be projected onto the disputes about money. It might look like the parties are fighting about money, but don't be fooled by this. What may really be animating the litigation is the hurt feelings, the remaining anger, the lingering disappointments about the marriage. These underlying parts are what run up the huge lawyer bills.

Think about this: if dividing up your money were only about fairness, you could figure out what your total assets were and divide by 2. You'd get one half; your spouse, the other. You could do this on the back of a cocktail napkin. But you probably won't do this at the start of the divorce because you probably want something more from the process, something that compensates you or punishes your spouse for the end of the marriage. These are not things the divorce process is designed to provide, but your search for them will, nevertheless, ultimately lead you to hiring a lawyer.

When you hire a lawyer, the first thing you learn is that lawyers want to receive a retainer. If you divide the retainer by the hourly fee, the quotient is the number of lawyer hours you are purchasing. The retainer doesn't estimate how many hours it will take to resolve the case. In fact, the retainer may be fully exhausted before you receive any tangible benefit, and you'll be billed for additional, large sums of money.

Why does this happen? The answer is obvious but not frequently noticed. There is a huge dollar cost for every single disagreement between the parties. In every disagreement, because both sides' lawyers must participate and must be paid for their time, every disagreement has a real cost. Put simply, if your lawyer spends 2 hours on paperwork and meetings with you and phone calls (all of which will be billed to you), and your spouse's lawyer spends the same amount of time, you and your spouse are immediately 4 hours x the lawyers' hourly rates poorer. You have no real idea how easily 2 hours of lawyer time can be spent and how little it may accomplish, but you are instantly poorer by the cost of that argument.

The money to pay for the argument is coming from the same pot, i.e. your gross assets, as the ultimate settlement of the case. The decrease in your assets is the cost of your argument.

If you and your spouse went out and bought a new Lexus for both of the lawyers (make mine a convertible), and then sat down at the kitchen table and divvied up the remaining money, you'd end up with precisely what you are going to have as a settlement of the case after you pay for the cost of all of your arguments.

Unfortunately, while the divorce is pending, most litigants are not consciously aware that their arguments are decreasing their assets by buying lawyers new cars. They think instead that they are fighting for what is only fair to them and that the expense is at the end of the day their spouse's fault.

If dividing up the parties' assets were just a business proposition, the prudent client might ask what it would cost to get the better, fairer deal and determine if the expenditure were worth it. But remember, sadly, this isn't just a business proposition.. It's a divorce. And the emotional motivations for the argument may initially obscure cost considerations.

Unfortunately, emotionally cloudy decision making can only go on for so long. After a while, whatever funds could originally have been used to settle the case, have been spent on lawyering, and the parties are left to make an even more painful distribution of their assets. That's when most cases settle: when the parties finally see how much they've hurt their potential settlement by arguing and realize that they can't afford to let it get any worse. Sadly, the assets to be divided have by then been reduced by the cost of the parties' arguments.

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