June 25, 2021

The High Cost of Divorce

BY Olga KhazanThe Atlantic

ara met her future husband when she was 18. He struggled with drug and alcohol addiction, but Sara thought marriage would change him for the better. It didn’t. Sara gave birth to two kids before the age of 25, and she says her husband grew controlling and abusive. A few weeks ago, he got drunk and punched her in the face repeatedly, she says, and she realized they had to divorce.

Sara’s divorce is one of the most difficult kinds—a contested divorce in which she and her husband don’t agree on child-custody and financial matters. She initially had trouble getting a lawyer to represent her. “I have reached out to every lawyer that I can to see if they’ll represent me, but because I have no money, nobody will,” she told me recently. (The Atlantic is withholding Sara’s last name for her protection.)

I found Sara through a Facebook group for people looking for pro bono lawyers to take on their divorce cases. Women post photos of their bruises. They upload mugshots of their spouses. They ask for help divorcing someone they wish they had never met.

The Supreme Court has ruled that the Constitution guarantees Americans the right to a lawyer in criminal cases, but there’s no such right for civil cases, where matters including eviction, child-custody disputes, and divorce are litigated. Paying a private attorney to help with a divorce can cost $10,000 to $20,000. People can seek help at legal-aid organizations, but there aren’t enough pro bono attorneys to help everyone. (A 2017 report found that 86 percent of the civil legal problems experienced by low-income Americans received no or inadequate legal help.) Out of necessity, divorce gets the least attention. All the other scenarios—someone is about to lose their house or kids—seem much more urgent. “Poor people who can’t afford lawyers do not have the same America as everyone else,” says Rohan Pavuluri, the CEO of Upsolve, which helps people file for bankruptcy without a lawyer.

[Read: How divorces work for the super-wealthy]

Some experts argue that divorce should be hard, so that spouses try to reconcile. “Marriage is an important factor in fostering better social, emotional, and economic outcomes for our kids, adults, and communities,” says W. Bradford Wilcox, the director of the National Marriage Project at the University of Virginia. “For those kinds of reasons, I think we should be concerned about the erosion of civil marriage in the United States since the 1970s, when no-fault divorce took off.” He supports a universal three-month waiting period for a divorce, and an advantage in the division of assets and child custody to the spouse who wants to preserve the marriage.

But some marriages are clearly beyond repair, and divorce has benefits over separation, such as the official end to one spouse’s ability to make financial and medical decisions for the other. Once you’re divorced, your ex can no longer ruin your credit. The high cost of divorce encourages separation for the poor and divorce for the wealthy: In one large study, about 15 percent of separated spouses, who were disproportionately low-income people of color with children, simply stayed separated rather than divorcing.

Getting divorced is also important if you are in an abusive relationship, or if you want to marry someone else. (Wilcox supports an “accelerated process” for survivors of abuse.) Because a spouse is entitled to a share of your property when you die, a divorce can prevent an ex from inheriting your house or your money. It’s also a matter of identity: “I don’t want to be married to that bum anymore,” says James Greiner, a Harvard Law professor who recently examined the hurdles faced by poor people seeking divorce.

Despite its emotional and economic cost, divorce can be beneficial. Some young people report that both they and their parents grew happier after their parents’ divorce. Women in particular report being happier than ever after getting out of a bad marriage. As states made divorce easier over the years, they saw declines in female suicide, domestic violence, and femicide, as well as increases in the amount of time men spent on housework. When laws changed so that judges began recognizing homemakers’ contribution to the marriage during divorce proceedings, the number of marriages rose, presumably because stay-at-home moms could be assured they wouldn’t be left destitute if the marriage broke up.

In a recent study, Greiner and a team of researchers examined low-income people’s attempts to get simple, uncontested divorces in Philadelphia over a period of five years. Working with the Philadelphia Volunteers for the Indigent Program, a legal-aid organization, the researchers randomly assigned 74 divorce-seekers, out of 311, into a pool of people they would attempt to match with attorneys. Those whom the team tried to match with lawyers were much more likely to successfully get a divorce within three years: About 46 percent of them got divorced in the county, compared with 9 percent of the control group, whose members were not matched with an attorney. (Not everyone the authors attempted to match with a lawyer actually got one: Some reconciled with their spouse, and attorneys could not reach others.) “You had to be quite lucky to get a divorce if you didn’t have a lawyer,” Greiner told me.

Uncontested divorces are those in which both parties agree to divorce and on how to divide assets. Yet divorce requires spouses to sue each other, and doing so involves surmounting a series of complicated hurdles, even in the most straightforward cases. Divorce laws vary by state and county, but in general, a person may have to hire a process server to get the divorce paperwork to their spouse, which costs about $200. They may have to file complicated forms, face multiple waiting periods, and make multiple trips to the post office, courthouse, and a law library—none of which is likely to be open after 5 p.m. At the time of the study, courthouse clerks in Philadelphia were not allowed to give legal advice, so they couldn’t answer basic questions about which forms were the right forms. “I’ve studied law all my life, and I did not know what a praecipe to transmit the record to the prothonotary was,” Greiner said. “I have no idea what those words mean.” Neither would someone without a law degree, presumably.

In Philadelphia, litigants who represented themselves faced a $300 filing fee that couldn’t be paid by check. A final, essential form had to be filled out with a typewriter—it couldn’t be handwritten. Elsewhere, people seeking divorce have to prove that they’ve lived in separate households for several months—something that can be difficult for low-income people to afford.

[Read: Why divorce spikes in August and March]

In an email, Judge Margaret Murphy, who oversees Philadelphia’s divorce court, criticized the study, saying it ignored the fact that 1,587 people did get divorced without lawyers in the time period the study covered—meaning some people clearly were able to figure out the process. She also said the court has since added a help center to assist people who represent themselves.

Still, when I asked Todd Nothstein, a staff attorney with Philadelphia VIP, the legal-aid organization from the study, what it takes to get either a contested or uncontested divorce, he emailed me this answer: “If you’ve already been separated for the requisite period of time—usually one year—then you can file a 3301(d) affidavit with the complaint. But if you haven’t been separated that long yet, you have to wait, and then when it’s appropriate, you file the 3301(d) affidavit and go forward. If you just both agree to divorce and you want to consent, ironically, that often takes longer for those who have been separated a year or more because the statute has a 90-day waiting period before both parties can file an affidavit of consent, known as a 3301(c) affidavit. After the appropriate affidavits are filed, if there are no economic [disagreements], you can file a notice of intent stating that you are going to request a divorce decree. Then you have another 20-day waiting period before you can actually request the decree. However, you also have to provide the opposing party with a blank 3301(d) counter-affidavit when you file a 3301(d) affidavit, so that gives the opposing party a chance to dispute the alleged date of separation. If they dispute the date of separation, then there has to be a hearing before a divorce arbitrator to resolve that before you can request a decree.” Got it? And that’s only the first part.

Divorce doesn’t need to be this hard. In an earlier paper on the topic, the Philadelphia divorce-study authors write that the procedural complexity stems from a “state-enforced, cartel-like system” of lawyers, perpetuated, perhaps, out of “habit, neglect, indifference, ignorance, and/or stupidity.” In other words, the system was designed by lawyers, and lawyers don’t like change.

The very notion of no-fault divorce is only a few decades old in many states. Until 1966, for example, adultery was the only grounds for divorce in New York. Miserable husbands would hire an actress (typically a blonde, according to one law-review article), and a photographer, and then stage a supposedly adulterous scene in a hotel room in order to end their marriage. One 20-year-old mother was the “unknown woman” in 35 such divorce cases. Meanwhile, women from all over the East Coast would take trains to Nevada, where divorce was much easier. They would then stay at “divorce ranches,” waiting out the six-week residency requirement for divorce.

The convoluted process of divorce still carries a whiff of paternalism, a suggestion that the state doesn’t trust people to make responsible decisions. “It’s this deep-seated state commitment to keeping people married and discouraging divorce,” says Laurie Kohn, a law professor at George Washington University and the director of its Family Justice Litigation Clinic. Some people will, indeed, give up and stay married. “Often, those are the clients that I see 20 years after they have stopped living with and having a relationship with their spouse, and they want to get remarried,” she told me.

Divorce gets even more complicated when children, shared debts, or lots of money come into play. John Whitfield, the executive director of Blue Ridge Legal Services in Virginia, says the legal-aid firm stopped representing clients in child-custody disputes, because “they just soaked up all of our resources.” Some people find themselves squaring off against their ex and their ex’s lawyer by themselves, and the judge doesn’t treat the two sides any differently. Their ex’s lawyer can request documents: bank statements, bills, and other evidence that can draw out the proceedings. “When you see someone walk into the courtroom without a lawyer,” Whitfield says, “they’re gonna lose. The court system rolls its eyes at those people.”

Joleena Louis, a divorce attorney in New York, frequently hears from people who can’t afford to hire her. She offers them a consultation in which she describes what it will take to represent themselves. Even with a lawyer, getting a divorce can take more than a year. Her line of work has persuaded Louis that too many people get married without realizing the complexities of divorce, and that perhaps a class should be required before people tie the knot.

Getting a marriage license is easy—it requires little more than a small fee and a form. Marriage is the rare contract you can’t get out of by both parties saying, “I don’t want to do this anymore,” Greiner told me. Some legal experts suggest reforming the process so that getting an uncontested divorce is much simpler, and maybe even doesn’t take place in court. And for difficult, contested divorces, perhaps Americans should be guaranteed a lawyer, just as they are for criminal cases.

After I interviewed Sara, she kept contacting her local legal-aid office, which has just two lawyers available to handle divorces across five counties. To her relief, a lawyer there agreed to represent her, because she had experienced domestic violence and his caseload had recently cleared up. Thousands of others aren’t so lucky.