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By Ed Sherman |
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Divorce--How the Legal System
Works Against You
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Divorce--How to Beat the System Divorce - How to Survive Financially Divorce Mediation A Relatively Speedy and Low Cost Alternative Cheating Husbands - Meeting Needs? Divorce--Negotiating Agreement: Ten Steps
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It began hundreds of years ago in the middle ages with "trial by combat,"
where people with a disagreement would fight it out and whoever survived was
"right." Today, physical contact is no longer a recognized legal technique,
but things are still set up as a fight. The parties are regarded as
adversaries, enemies in combat. When a divorce is conducted in our legal
system, the spouses and their attorneys are expected to struggle against one
another and try to "win" the case, to "beat" the opposition.
The rules control the way your attorney works with you. Your attorney is
required to be "adversarial," that is, aggressive and combative. The
adversary system and the way lawyers work in it is a major cause of
conflict, trouble and the high cost of divorce. You want to have as little
as possible to do with the legal system. It is designed to work against you.
In spite of the way things seem, lawyers are not always villains and not
always to blame for stirring up conflict. But even for lawyers who mean
well, the tools they use and the system they work in will usually increase
conflict. Law schools do not require courses in communication or
negotiation. Rather, they stress manipulation of rules of law, aggressive
and defensive strategy, how to take any side of any case and make the most
of it, how to argue, and how to get the most financial advantage in every
situation.
Professional standards of practice dictate how a lawyer will conduct your
case. For example, professional ethics forbid your lawyer to communicate
directly with your spouse--the adversary. It is expected, instead, that your
spouse will be represented by an attorney and your lawyer can only
communicate through your spouse's lawyer.
This means that your attorney can't "talk sense" to your spouse, or explain
to your spouse how you see things, or even help you talk to each other. It
means your attorney will always have a one-sided view of your case and can
never achieve an understanding any greater than your own.
If you retain a lawyer, he will definitely take your case into the contested
cycle of the legal system because that's the only thing he can do. He has
to. There are no other formal tools a lawyer can use.
The primary tools the lawyer uses are pre-trial motions and discovery. An
attorney can take you and your spouse into court to get temporary orders for
support, custody, visitation or keeping the peace. An attorney can use
formal discovery to get documents and information under oath.
So, if you and your spouse can work out your own temporary arrangements and
share all information openly, you'll have no need for those incredibly
expensive legal tools. You can keep your case out of lawyers' offices and
out of court.
But, if either spouse retains an attorney, that attorney will invariably
write formal letters, file legal papers, make motions, and do discovery.
These actions will surely cause the other spouse to get an attorney, too.
Now, instead of two people who don't communicate well, you have four people
who do not communicate well. The case is now contested and the cost and
conflict level will go way up. Attorneys tend to ask for more than they
expect to get; it's considered "good" practice. Your spouse's lawyer will
oppose your lawyer's exaggerated demands by offering less than they are
willing to give and by attacking you and your case at the weakest points.
Now you're off to a good, hot start and soon you'll have a hotly contested
case, lots of cost, and a couple of very upset spouses. Fees in contested
cases can run from tens of thousands of dollars each all the way up to
everything.
Summary: Except in high-conflict cases, the legal system has little to
offer. The things an attorney can do for you are expensive, upsetting, and
tend to increase conflict rather than reduce it.
If you don't want to (or have to) use the legal system, go around it--work
out your arrangements outside the legal system and, if necessary, get
limited assistance, in the form of information and advice, from attorneys
who do not represent the spouses.
Take heart; I tell you exactly how to do this in my articles, Divorce Roadmap: The Route Around the Legal System
and
Copyright 2005 Ed Sherman
Ed Sherman is a family law attorney, divorce expert, and founder of Nolo Press. He started the self-help law movement in 1971 when he published the first edition of How to Do Your Own Divorce, and founded the paralegal industry in 1973. With more than a million books sold, Ed has saved the public billions of dollars in legal fees while making divorce go more smoothly and easily for millions of readers. You can order his books from or by calling (800) 464-5502.
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