By Linda Bryant
Attorney and divorce mediator Patricia Best Vital has been practicing law in Hamilton County for 24 years, and during that time span, she’s seen some major changes in issues surrounding divorce.
Increasingly, there’s a strong focus on what’s the very best for the children.
To back it up, divorce mediation (also called alternative dispute resolution) has gone from being a social trend used by couples wanting to find a better – and less contentious way to untie the knot – to being a requirement for all disputed divorces in the state.
Discord and power struggling between parents is almost certainly going to translate into a more expensive divorce and likely to irritate the judge, who will be looking out for the kids first, Vital says.
“Judges will say, ‘We don’t care about the toys of the marriage. Our job as judges is to protect the children.” Vital explains.
It is the mediator’s job to help couples resolve some or all of their contested divorce issues. Furthermore, a mediator won’t force the parties into an agreement, but works with both spouses to help arrive at their own solutions on divorce-related issues, including the division of property and debts and alimony.
With child custody disputes, parents are required to attend mediation to work out a parenting plan that resolves custody and visitation.
Vital says reasons for divorce have stayed the same over the years and include time-worn causes such as drifting apart, infidelity and general incompatibility.
But there have been some profound changes in the way evidence is collected, especially when it comes to social media such as Facebook and Instagram, phone texting and e-mail communications.
“What I often see (with a divorcing couple) is a breakdown in communication,” Vital points out. “Somewhere along the line communication ceased to be positive or constructive.
“Good mediators will tell you the most successful mediations are when both parties don’t walk away feeling like they’ve gotten everything they wanted,” Vital adds.
“But most couples don’t get there (a peaceful solution) on their own. A few do, but a lot don’t. There has to be a lot of coaching, a lot of education, and that’s where mediation comes in.”
Vital says social media has made it a lot easier to find proof of misconduct or unethical behavior by a spouse. She recently had a client who discovered his soon-to-be ex-wife was selling his personal property on Facebook.
Financial and emotional pain
When Courtenay Rogers finalized her divorce in 2011, it was after three long years of working with mediators and attorneys.
Rogers, who describes herself at that time as a frightened single mother with no stable income, had hoped the divorce would take much less time and cost less money.
But, of course, there were complications and obstacles, including juggling the needs of a young preschool-aged daughter and working around the demanding schedule of a military spouse.
Rogers initiated her divorce in Maryland, which is also where a lot of the initial mediation and consulting with lawyers started. Eventually, she realized it was in her best interests to move back to the Nashville area so that she could save money and receive ongoing moral support from friends and family.
Looking back, Rogers wishes she’d been better educated about the process and costs of divorce. In all, she estimates the divorce process cost her about $14,000.
“I was 30 and didn’t know a lot of divorced people,” Rogers says. “In fact, I was the first of my friends to divorce. I went into it blindly and should have done more research.
“It was an emotionally sad and scary time, and I didn’t know how to stick up for myself. I just kept asking myself, “What am I going to say to my daughter about this someday? How can I make sure it doesn’t hurt her?
“To this day, I believe that’s one thing I got right,” Rogers continues. “The whole thing was a lot more expensive than I expected, but at least I didn’t just act out of anger.
“There were hard issues (between Rogers and her husband), and there were phases of anger, sadness and acceptance, but I didn’t take it out on my kid.”
Rogers still feels the financial pain of her divorce.
“The cost of the divorce put me in debt for sure,” she adds. “Even now, I still feel it with my lowered credit score. But, it was the best decision for me and for my daughter.”
What does a divorce cost?
According to the Martindale-Nolo law research firm, the average divorce in Tennessee costs $12,600, which includes $9,900 in attorneys’ fees.
Other expenses include fees for court filings, the cost of copying and sharing documents and compensation for expert witnesses and consultants such as child custody evaluators, appraisers, or financial analysts. The average attorney fee in the state is $240 an hour.
But certain factors drive those costs up.
For instance, spouses who have minor children or a high-net worth typically have higher divorce costs than the state average. In addition, if you file for a divorce in Tennessee based on fault, such as adultery, cruelty, desertion, or impotence, the cost of your divorce is likely to be higher than the average.
Martindale-Nolo’s latest research puts the average costs for a divorce in Tennessee that involves children at $18,900. A split that involves alimony averages $17,400, and one with property division averages $17,700.
Vital, who purposefully prices herself services in what she calls the “middle-low” range, charges a $2,500 retainer and $240 an hour. She says the average price of a divorce with her is about $10,000.
But she’s quick to add there are radically less expensive divorces that barely take up the required retainer, and at least one “outlier,” that was $50,000 in her attorney fees alone and involved complicated litigation and expert witnesses.
Ask: How much?
Rose Palermo, longtime Nashville divorce attorney and a principal of the Cheatham, Palermo & Garrett law firm on Music Row, says most people are reluctant to bring up costs when they meet with, or ultimately, hire a divorce attorney.
She thinks they should broach the subject and also says she believes plenty of lawyers take unfair advantage of their divorcing clients when it comes to charges.
“Clients rarely ask you about your billing because they are so upset about their personal situation,” Palermo explains.
“You really need to ask a lawyer what they realistically think a divorce may end up costing you.
“Of course, there’s no way to tell what the lawyer on the other side is going to do, but it’s very good to ask. The lawyer may be really cooperative.
“But some, I swear, are just billing machines. It seems like the main course they took in law school was in how to bill.”
Palermo, who has been practicing law for over four decades, is known as a hard-hitting lawyer and Nashville’s “divorce attorney to the stars.” Clients have included Wynonna Judd and Tracy Lawrence.
Despite her high-profile status, Palermo is sympathetic to divorcing folks who so often feel their divorce lawyer has taken them for a ride.
“Yes, there are a lot of lawyers whose fees are outrageous — off the charts,” Palermo points out. “Every time you turn around they’re filing a motion or a notice, when they could just pick up the phone and call you and deal with what’s needed more quickly.”
At $400 an hour, Palermo is not cheap, but she says she has ways of looking out for clients in ways that keep costs down.
“An average divorce on my side is under $10,000, and I see a lot in the $6-7,000 range – that is if there’s no big fights and it includes mediation and paralegal fees. I start off with a $5,000 retainer.”
One of Palermo’s cost-saving measures for clients involves having paralegals handle phone calls and answer questions.
“I had one lady tell me at the end of a (legal) process she was a little irritated with me because I wasn’t available to talk to her every time she called,” Palermo explains. “She told me her husband’s lawyer was available to him 24/7 and could call him at home. But she said her bill was one-quarter of what his was.
“I’m not saying you shouldn’t let your clients have access to you,” Palermo adds.
“After all, one of the big gripes people have is you can’t get in touch with your lawyer. The point is, you need to have somebody; I have paralegals who help with questions. Even if the paralegal doesn’t know the answer to a question, they (the paralegal) can ask me and get back to them. It costs a lot less money.”
Palermo has certainly seen her share of divorces with price tags of over $10,000, but even then, she says she offers superior value to clients.
She uses a past divorce she handled for a “huge estate with a lot of complicated businesses” as an example.
“The wife had two lawyers and a CPA,” Palermo says. “It was my paralegal and I working with his (the client’s) business lawyer. My end of the case was about $80,000, plus he paid about $100,000 to his business lawyer. The wife’s bill was $500,000.”
The use of alternative dispute resolution – or mediation – was unheard of 25 years ago, but it has since exploded in demand. In fact, mediation has become common and is mandated in Tennessee for custody and visitation disputes. It is widely used for financial disagreements as well.
Many lawyers will not go to trial without at least suggesting some form of mediation or dispute resolution to their client.
Jan Walden, a Nashville attorney and trained divorce mediator, is a passionate advocate for what she calls “pre-litigation mediation.”
“When faced with divorce everyone should explore the options before getting caught up in costly litigation,” Walden says.
When couples choose to mediate before the judge requires it “the process requires less time, and therefore, the cost is much less, even with the cost of retaining an attorney to process the papers through the court for the uncontested divorce,” Walden adds.
In Tennessee, there’s a statutory waiting period for divorce – 90 days when children are involved and 60 days when there are no children. Walden says many couples would be wise to go into pre-litigation mediation during that time.
“The least expensive divorce is when the parties agree on all issues and the parties get an uncontested divorce,” Walden says. “The fee can range from a few hundred to a couple of thousand depending on the attorney.”
“In recent months, I have represented clients for an uncontested divorce when hope of settlement went off the rails when the other party retained counsel,” Walden adds.
“It was necessary for me to refer my client to a litigation attorney who was able to settle the case in mediation after thousands of dollars had been paid by both parties in attorney’s fees. My fee would have been $1,500 had the parties been able to come to an agreement on their own.
“The cost of the litigation track increases with the cost of ‘shuttle mediation’,” she continues. “One party and attorney are in one room and the other party and attorney are in another room.
“The mediator shuttles between the two with demands and proposals. This can last for hours while the parties are paying the hourly rate of his or her attorney and half the hourly rate of the mediator who will likely end up telling the parties what the judge is likely to do if they don’t settle.”’
To get started Walden, who charges $240 an hour, schedules a 90-minute session with clients. She also offers 30 minutes of free consultation to discuss the options available when facing divorce.
“We address the divorce issues: division of assets, payment of debts, alimony (if appropriate) and the detailed parenting plan and child support calculation,” she explains.
“Parties agree to voluntarily bring in all the necessary documentation for an informed negotiation. We schedule appointments as needed until agreements are reached on all issues – generally three or four sessions.”
Thinking of children first
Walden says she decided to devote herself to pre-litigation mediation because many years ago she saw so much happening in family courts that she felt, in the end, wasn’t in the best interests of the children.
“In the litigation process each party retains an attorney, and the process often becomes adversarial,” she notes, adding that the contentiousness and incessant power struggling between divorcing spouses is very damaging to the children.
Walden cites a seminal study from the Centers for Disease Control (CDC) and Kaiser Permanente, which showed that adverse childhood experiences, including divorce, can contribute significantly to adult physical and mental health outcomes and affect more that 60 percent of adults negatively.
Other studies, she adds, indicate that children of divorce are “more prone to drug and alcohol abuse, criminal behavior, mental and physical illness, and even suicide when their sorrow and emotional issues are not addressed.”
Even though she’s an attorney, Walden, wants to do all she can to minimize the negative impact overly-aggressive lawyers have on families.
“Instead of emphasizing the need for a peaceful settlement, many attorneys just proceed as if there could be a trial down the road,” she says. “Interrogatories and requests for production of documents are often issued immediately.
“Attorneys do not refer clients to early intervention mediation or even inform them that this is an alternative,” Walden adds. “Nor, from my experience, do they work with the other attorney immediately in an effort to reach a peaceful settlement.
“When I once requested mediation for a client I was representing in an uncontested divorce, the opposing attorney told me she could not think about mediation yet, she had not even worked off her retainer.”
Bypassing lawyers altogether?
Certainly, the least expensive way to end a marriage it to file a do-it-yourself divorce request that bypasses attorneys altogether.
Nashville resident Tina Sampson went this route with her divorce.
Yes, it’s an option on paper that can cost less than $1,000. But it’s also a choice most lawyers, and even some mediators, often advise against.
Although the upfront costs of Sampson’s divorce were minimal, she now has regrets about the way she went about it.
“My ex-husband and I were together for 10 years and married for six-and-a-half years,” Sampson explains. “For the most part, we were happy. Both of us were outgoing, fun and fairly successful young professionals.
“There wasn’t one big event that led to our divorce. It was personality traits and behaviors that over the course of our relationship took a huge toll on my self-confidence and self-esteem.
“One day, I honestly woke up and said, “I can’t do this,” Sampson says.
“At that time, we were trying to have kids, and I decided I couldn’t have kids in that environment. Looking back, if I had been stronger, maybe his behavior wouldn’t have affected me the way it did and, maybe if he was older and had time to mature, maybe he would’ve seen how he was hurting me.
“He is a good person, and he is loyal and loving and had many wonderful qualities.”
Sampson and her ex-husband had just bought a house in the burgeoning 12South district when she decided to end the marriage.
“It was all my idea, so when I wanted a divorce, it put him in a bit of a financial bind and also broke his heart,” Sampson adds. “I wanted to give him more than I took. It was also out of guilt that I was walking away from our marriage and giving up.”
Sampson says, at first, she felt very liberated by choosing an easy – and non-contentious – way out of the union.
But her decision came back to haunt her.
“I wasn’t fair to myself at all, but it took a while to see that,” she points out. “He got the 12South house, which has increased in value threefold since then. I got a rental property we had that needed a lot of work, and I cleared $10k on it after I sold it. I had to start over.
“I didn’t even have an idea what we had in savings or retirement because he controlled everything,” Sampson adds. “There was definitely a financial disadvantage to how I did it, but there was an advantage in that there was no fighting. I simply walked away.”
If she had to do it over again Sampson says she would have “tried to save the marriage and gone to counseling before it got to the point of no return.
“And, I would have pursued half of the assets and taken care of myself in terms of finances,” she notes. “I did the best I could at the time, and I accept that.”
Palermo isn’t surprised by Sampson’s regrets and second thoughts.
“Do-it-yourself divorces usually don’t work unless you have absolutely nothing – no assets and no children,” Palermo says. “If you have a house to be sold, a pension or retirement plan that needs to be divided up, you really need a lawyer to do it.
“Even if you don’t have a lot of money you can find good lawyers who charge a lesser retainer,” she explains. “If you have children, don’t even try to do it on your own.”
Walden, however, thinks more and more people will use the do-it-yourself option, especially among younger divorcees.
“In view of the cost of a divorce when attorneys are involved, I believe that this approach will undoubtedly become more popular,” she points out.