| If there were no legal system, no lawyers and | | | | If you retain a lawyer, he will definitely |
| no courts, divorce would still be difficult | | | | take your case into the contested cycle of |
| and it would still take time to go through | | | | the legal system because that's the only |
| it. Divorce is at least a major crossroad in | | | | thing he can do. He has to. There are no |
| your life, maybe even a full-blown life | | | | other formal tools a lawyer can use. |
| crisis. | | | | |
| | | | |
| | | | |
| | | | The primary tools the lawyer uses are |
| So, here you are, you and your spouse, going | | | | pre-trial motions and discovery. An attorney |
| through your personal life changes, when the | | | | can take you and your spouse into court to |
| State comes along and says, "Excuse me! You | | | | get temporary orders for support, custody, |
| can't go through this without us. Your | | | | visitation or keeping the peace. An attorney |
| divorce has to be conducted on our field and | | | | can use formal discovery to get documents and |
| under our rules . . . and you can't even hope | | | | information under oath. |
| 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 | | | | So, if you and your spouse can work out your |
| system is based on conflict and it is | | | | own temporary arrangements and share all |
| specially designed to cause trouble and | | | | information openly, you'll have no need for |
| greatly increase your expense. Please pay | | | | those incredibly expensive legal tools. You |
| your filing fees on the way in." | | | | can keep your case out of lawyers' offices |
| | | | and out of court. |
| | | | |
| | | | |
| Our system of justice is known as an | | | | |
| "adversary system." This is the nature of the | | | | But, if either spouse retains an attorney, |
| beast. It began hundreds of years ago in the | | | | that attorney will invariably write formal |
| middle ages with "trial by combat," where | | | | letters, file legal papers, make motions, and |
| people with a disagreement would fight it out | | | | do discovery. These actions will surely cause |
| and whoever survived was "right." Today, | | | | the other spouse to get an attorney, too. |
| physical contact is no longer a recognized | | | | Now, instead of two people who don't |
| legal technique, but things are still set up | | | | communicate well, you have four people who do |
| as a fight. The parties are regarded as | | | | not communicate well. The case is now |
| adversaries, enemies in combat. When a | | | | contested and the cost and conflict level |
| divorce is conducted in our legal system, the | | | | will go way up. Attorneys tend to ask for |
| spouses and their attorneys are expected to | | | | more than they expect to get; it's considered |
| struggle against one another and try to "win" | | | | "good" practice. Your spouse's lawyer will |
| the case, to "beat" the opposition. | | | | 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. |
| 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 | | | | Now you're off to a good, hot start and soon |
| lawyers work in it is a major cause of | | | | you'll have a hotly contested case, lots of |
| conflict, trouble and the high cost of | | | | cost, and a couple of very upset spouses. |
| divorce. You want to have as little as | | | | Fees in contested cases can run from tens of |
| possible to do with the legal system. It is | | | | thousands of dollars each all the way up to |
| designed to work against you. | | | | everything. |
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| In spite of the way things seem, lawyers are | | | | Summary: Except in high-conflict cases, the |
| not always villains and not always to blame | | | | legal system has little to offer. The things |
| for stirring up conflict. But even for | | | | an attorney can do for you are expensive, |
| lawyers who mean well, the tools they use and | | | | upsetting, and tend to increase conflict |
| the system they work in will usually increase | | | | rather than reduce it. |
| 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 | | | | If you don't want to (or have to) use the |
| take any side of any case and make the most | | | | legal system, go around it--work out your |
| of it, how to argue, and how to get the most | | | | arrangements outside the legal system and, if |
| financial advantage in every situation. | | | | necessary, get limited assistance, in the |
| | | | form of information and advice, from |
| | | | attorneys who do not represent the spouses. |
| | | | |
| Professional standards of practice dictate | | | | |
| how a lawyer will conduct your case. For | | | | |
| example, professional ethics forbid your | | | | Take heart; I tell you exactly how to do |
| lawyer to communicate directly with your | | | | this in my articles, Divorce Roadmap: The |
| spouse--the adversary. It is expected, | | | | Route Around the Legal System and |
| instead, that your spouse will be represented | | | | Divorce--How You Can Beat the System. |
| by an attorney and your lawyer can only | | | | |
| communicate through your spouse's lawyer. | | | | |
| | | | |
| | | | Copyright 2005 Ed ShermanEd Sherman is a |
| | | | family law attorney, divorce expert, and |
| This means that your attorney can't "talk | | | | founder of Nolo Press. He started the |
| sense" to your spouse, or explain to your | | | | self-help law movement in 1971 when he |
| spouse how you see things, or even help you | | | | published the first edition of How to Do Your |
| talk to each other. It means your attorney | | | | Own Divorce, and founded the paralegal |
| will always have a one-sided view of your | | | | industry in 1973. With more than a million |
| case and can never achieve an understanding | | | | books sold, Ed has saved the public billions |
| any greater than your own. | | | | 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. |