If you have significant assets you can afford to fight about them for as long as you want. That is worth saying out loud at the beginning, because it is the single most expensive fact about a high net worth divorce. Nobody stops you and the case does not run out of money and end on its own. It ends when both spouses decide it should end.
So how to survive your divorce depends on the road you are going to take because the road determines the cost, the time and the anxiety. The road is set almost entirely by the decisions of the two people in the marriage and the road you take determines how much you spend and how stressful it becomes. Do not let your attorney make this decision for you. And it is not made by the disagreements or by the size of the estate. It is made by whether each spouse shows up willing to get it done and whether they have hired the right attorneys to help them get there.
Below are seven roads you might travel. These are the roads we see most often. You will probably find yourself in one of them and now you will know what to expect. Keep some things clear as you travel. What is the end game? What is the big picture?
First, Arizona Divorce Law Facts
Arizona is a no fault state. Before granting a divorce, the court has to find that the marriage is irretrievably broken, meaning there is no reasonable prospect of reconciliation. If both spouses say so under oath, or one says so and the other does not deny it, the court makes the finding that it is broken. Your spouse does not have to agree that the marriage is over for it to be over.
That surprises people who want the court to hear why the marriage failed. The reason for the divorce is not the court’s concern.
Some financial misconduct can still matter to money, though, and this is an important distinction. In dividing property, the court is not prevented from considering excessive or abnormal expenditures, gambling, marital waste, or the destruction, concealment, or fraudulent disposition of community property.
Both spouses also have disclosure obligations regardless of which road they take. Disclosure is not something you agree to as a courtesy in a cooperative divorce and skip in a hostile one. It is required in every family law case, the initial exchange is due within forty days after the response to the petition is filed, and it is an ongoing duty during the litigation as new information surfaces.
And the choices available to you are real ones. Arizona’s family law rules contemplate several ways to resolve a case short of trial: family law arbitration, private mediation, and a settlement conference, along with the court’s conciliation services. In arbitration, the parties can retain one arbitrator who acts like a judge, outside the courtroom and that one person decides all issues that the parties cannot agree on. The arbitrator hears all the evidence and makes the decisions in writing. This is not as common as mediation, where a neutral third person is retained by the parties, usually through their attorneys. The mediator then goes back and forth helping the parties resolve issues until all matters are decided. It could take a day or two to decide all issues and is done once all disclosures are made. This is done in a comfortable office where you can bring your coffee, roll up your sleeves and work on the issues. Most divorce cases should never see a courtroom.
Here are the roads that people travel when they argue about the assets. Many families also have children but this article deals just with the financial part of the divorce. Children add a whole other layer to the process. Some roads you are on willingly and some you are on because of the actions of your spouse, where you have no choice at all. The best road is the one where you both agree to work this out usually with the help of attorneys and a mediator.
Road 1. One spouse is helpful. The other is angry and vindictive.
Road 1This is expensive and it is agonizingly slow. One spouse produces documents, answers questions and tries to move the case, while the other treats every request as an attack and every concession as a loss. Cooperation on one side gets read as weakness by the other which means the helpful spouse’s good behavior does not speed anything up. It just makes the record cleaner.
What you control here is narrow but it matters. Do not match the anger but document instead of arguing. The anger will produce its own record. That record does not help. Arizona courts can consider the reasonableness of the positions each party has taken throughout the proceedings when it decides whether to award attorney fees.
Road 2. One spouse is helpful. The other cheats with the money.
Road 2This road is about a spouse who is not honest about what exists. Income that does not appear, accounts you were never told about, a bonus deferred until after the decree, personal expenses running through a business, money parked with a sibling or a parent or a friend until the case is over.
The cost looks a lot like Road 1, but for a different reason. Nobody is fighting about feelings here. You are paying for the work it takes to go find things, which means subpoenas, records, sometimes a forensic accountant, and the hours it takes to reconcile what the statements say against what the lifestyle showed. That work is worth doing when the pattern is real, because concealment and the fraudulent disposition of community property are things the court can consider when it divides the estate.
The hard conversation on this road is to know whether what you find is worth the cost of finding it. Sometimes yes, sometimes no. Some digging pays for itself several times over and some digging costs more than what it finds.
Road 3. One spouse is helpful but insecure about the future. The other is helpful and wants to be done.
Road 3This one goes smoothly as long as everyone understands that fear can wreck everything. When we have a case like this, on either side, we want to calm the fears. There is enough money for the future, you will have a good financial life, and we can make sure that all is well with you going forward. The litigation behavior then has to match that message by keeping things calm and reducing anxiety.
The fear is about the final number but it is revealed by the litigation: how the mortgage gets paid next month, whether the credit cards still work, what happens to health insurance.
What wrecks this road is the small hurtful act. Cutting off credit cards, closing an account, moving money just to be safe. Any one of those converts a cooperative case into Road 1 overnight, and it is nearly impossible to walk back. Address security, anxiety and fear first. Speed comes second and a fair resolution is a path that is easier to pave.
Road 4. One spouse is helpful and does not know anything about the money. The other is helpful and discloses.
Road 4This is the friendliest road on the list. Nobody is buying their attorney a new car on this one.
One caution and it is not an accusation: the spouse who has not looked at the finances in twenty years still has to look now. They want to become educated and empowered, and they need this knowledge to make good decisions for their future. Take the time to learn and understand, because the more data you have, the better decisions you will make for yourself and your family. And kudos to the spouse who assists with this new education, because it is a win-win for both parties.
Road 5. One spouse wants their day in court. The other just wants it to be over.
Road 5Everything in this pairing turns on one question: can the day in court happen somewhere other than a courtroom? Sometimes it can happen in mediation. In fact, I have seen it work better in mediation because you have time to talk and tell your story. There is no cutting off of your story because facts are irrelevant or there is no foundation. Just the story being told helps the person move forward.
Being heard and being in court are not the same need, and people who insist on the second usually want the first. A settlement conference or a mediation can give someone the experience of saying what needs to be said to a neutral person and that is frequently enough. Because it is not a courtroom, that story is not shouted at the other spouse, and whatever relationship repair might happen later is more likely when these loud accusations are not heard bouncing around courtroom walls.
Road 6. One spouse wants scorched earth. The other is hateful.
Road 6Two cars for your attorney and litigation that runs into the next decade.
If you are reading this and recognizing your own marriage, the honest answer is that you cannot stop this freight train by yourself. It takes two people to keep a case like this moving, which is also the useful part, because it means there are things you can stop doing.
Start with counsel. Some lawyers escalate for a living, and on this road that is not zeal, it is a business model. When you interview a lawyer, ask what they would try before filing a motion and listen for whether the answer involves talking to the other side at all.
Fights on this road spread into everything, including things that do not matter and things that are not actually in dispute. Concede what is genuinely not worth arguing about, in writing, early. It costs you very little and it makes the remaining disagreement easier to resolve.
Then keep your positions reasonable and keep the record clean. Arizona courts can consider the reasonableness of the positions each party has taken throughout the proceedings when deciding attorney fees. That is not a guarantee of anything, but over two years of litigation the difference between the spouse who kept making sensible offers and the spouse who refused every one of them becomes very visible to a judge.
And decide early, on purpose, what you are willing to spend in order to be right. Write the number down. People on this road almost never do, and that is the reason the case outlives the reason for it.
Road 7. Both spouses are insecure about the future. Both want it done. Both are helpful.
Road 7Notice what that does not say. It does not say they agree on anything.
They can disagree about the house, the business, the spousal maintenance issue and this is still one of the best roads, because desire to cooperate and consider reasonable settlement terms is what determines whether a case resolves. Two cooperative people with real disputes can do well in mediation, and attorneys who know the process build something that both of them can live with. The end game is where they are both secure and get most of what they want. They are on the same team, so to speak, and they have a chance of getting there together.
When you do not get to choose the road
Some of these roads are not your choice and that is the hurtful truth. A judge once told me that it takes two to tango. Yes, but that is dancing and litigation is not dancing. It only takes one person to make the process absolutely miserable. Be aware of how fast this can go downhill and take on a life of its own especially if you retain an attorney who wants to fight, fight, fight. Your choices will always be substantial: how you respond, who represents you, and whether you are willing to spend two years and a great deal of money proving a point that is worth less than what it costs to prove. Sometimes you have no real choice and that is the sadness of it all.
Choosing wisely
The reason this matters in a high net worth divorce is that money is no object to litigation. The financial resources remove the natural stopping point. A couple with a modest estate reaches the end of what they can and will spend and then they settle. You will not. You may never reach the end of what you are willing to spend or you may get so far down the road that gravity will not let you stop.
Think about the end game and the big picture. What road will get you there more efficiently and effectively? We always tell our clients that no one wins in litigation, and we believe that to be true. We are trial litigators and we are very, very competent in court. But clients never really win in court, even when they win. Sometimes it has to be litigated, and sometimes it really does not.
Questions about the seven roads
What makes a high net worth divorce different?
Significant assets can remove the natural financial stopping point in litigation, making process choices, disclosure, valuation, and clear goals especially important.
Does Arizona require both spouses to agree to divorce?
No. Arizona requires a finding that the marriage is irretrievably broken; one spouse cannot force the other to remain married.
Can financial misconduct matter in an Arizona divorce?
Yes. Arizona law allows the court to consider excessive or abnormal expenditures and the destruction, concealment, or fraudulent disposition of community property.
Can high net worth divorce be resolved outside court?
Often, yes. Depending on the case, mediation, settlement conferences, or arbitration may resolve financial issues without a full trial.
