Divorce--How the Legal System Works Against You

If there were no legal system, no lawyers and no courts, divorce would still be difficult and it would still take time to go through it. Divorce is at least a major crossroad in your life, maybe even a full-blown life crisis.

So, here you are, you and your spouse, going through your personal life changes, when the State comes along and says, "Excuse me! You can't go through this without us. Your divorce has to be conducted on our field and under our rules . . . and you can't even hope to understand our rules. Oh, by the way, this divorce system we're going to put you through has no tools for helping you solve problems or negotiate with your spouse. In fact, our system is based on conflict and it is specially designed to cause trouble and greatly increase your expense. Please pay your filing fees on the way in."

Our system of justice is known as an "adversary system." This is the nature of the beast. 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 Divorce--How You Can Beat the System.

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 http://www.nolodivorce.com or by calling (800) 464-5502.

---

Surviving Divorce: What To Think About To Ensure Surviving Divorce

Surviving divorce can be a valid fear if you're contemplating... Read More

How to Recover From Divorce

As a licensed mental health professional, I work with many... Read More

Houston Divorce Lawyer - West Houston Attorney Answers Common Questions About Mediation

If you are reading this, then you are probably either... Read More

Dating Tips for Divorced and Widowed Moms

Dating is tough for just about everybody, but it's even... Read More

Choosing Your Divorce Method

The biggest mistake that people make when getting divorced is... Read More

The Impact of Divorce on Families

As a licensed mental health professional, I work with many... Read More

How To Protect Your Life Insurance Policy While Going Through A Divorce

Life insurance, more than most things you buy, relates to... Read More

Seven Sets of Documents You Need For Your Divorce

Even if you believe your case will ultimately be agreed... Read More

An In-Depth Look at Army Divorce Rates

Raleigh, NC-The largest divorce firm in the state, Rosen Law... Read More

Divorce and Uncle Sam: Top 10 Things You Should Know When Filing Your Taxes

1. What is my filing status? (Married, Single, Head of... Read More

Advantages to Doing Your Own Divorce

There are many advantages to doing your own divorce. Three... Read More

Effects of Divorce on Children

When a couple decides their marriage is over, a tremendous... Read More

Avoid Lawyers! Do-It-Yourself Divorce Saved Me Tons of Money!

Let me preface this by saying right up front -... Read More

How Women Should Protect Themselves Financially Regarding Divorce

Women who believe a divorce is a possibility or who... Read More

Reasons For Divorce; What Constitutes Viable Reasons For Thinking About Or Wanting A Divorce?

According to the Center for Disease Control's National Vital Statistics... Read More

5 Ways To Ensure You Will Have a Happy Life After Divorce

Life after divorce is something that most people who are... Read More

Anatomy of a Divorce: How it Really Works

The legal divorce vs. your real divorce The legal... Read More

How Can Collaborative Law Be Beneficial In Your Texas Divorce?

Collaborative law is based on the realization that the commitment... Read More

Hidden Divorce Costs

Divorce has become part of life in the 21st century.... Read More

3 Major Divorce Parenting Mistakes And Learn How To Avoid Them

What 3 major divorce parenting mistakes that surely lead to... Read More

Getting a Jewish Divorce in the UK

What is the Get?The Get is the Jewish form of... Read More

Divorce--Overcoming the Obstacles to Agreement: Ten Steps

You're going to want to be working on your divorce... Read More

Divorce Articles: How To Get The Most From A Divorce Article

There are many types of divorce articles available on the... Read More

Surviving Life After Divorce

After divorce, the most important thing you can do is... Read More

Marriage Seperation - A Practical Guide

Finance in marriage seperation is a very big issue particularly... Read More

Extramarital Affair: Should You Get A Divorce Just Because One Of You Had An Extramarital Affair?

Having to deal with an extramarital affair can be a... Read More

Is Your Marriage Problem Severe Enough To Warrant Getting A Divorce?

Having a marriage problem can be agonizing especially if you're... Read More

Commitment

Being marriage means being fully committed to your husband as... Read More

Why Men Wont Commit To Marriage

A common reason why men wont commit could be due... Read More

Two Hearts Are Now One

It is fitting that I should write this story on... Read More

Divorce Makes Us Stronger

My friends call me the "Divorce Poster Child".At the age... Read More

Credit and Divorce

Mary and Bill recently divorced. Their divorce decree stated that... Read More

Divorce--Getting Legal Help Without Paying Exorbitant Attorneys Fees

Ignorance is the most common trap in the business of... Read More