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Divorce--How the Legal System Works Against You

If there were no legal system, no lawyers andIf you retain a lawyer, he will definitely
no courts, divorce would still be difficulttake your case into the contested cycle of
and it would still take time to go throughthe legal system because that's the only
it. Divorce is at least a major crossroad inthing he can do. He has to. There are no
your life, maybe even a full-blown lifeother  formal  tools  a  lawyer  can  use.
crisis.
The primary tools the lawyer uses are
So, here you are, you and your spouse, goingpre-trial motions and discovery. An attorney
through your personal life changes, when thecan take you and your spouse into court to
State comes along and says, "Excuse me! Youget temporary orders for support, custody,
can't go through this without us. Yourvisitation or keeping the peace. An attorney
divorce has to be conducted on our field andcan use formal discovery to get documents and
under our rules . . . and you can't even hopeinformation  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, ourSo, if you and your spouse can work out your
system is based on conflict and it isown temporary arrangements and share all
specially designed to cause trouble andinformation openly, you'll have no need for
greatly increase your expense. Please paythose 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 theBut, if either spouse retains an attorney,
beast. It began hundreds of years ago in thethat attorney will invariably write formal
middle ages with "trial by combat," whereletters, file legal papers, make motions, and
people with a disagreement would fight it outdo 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 recognizedNow, instead of two people who don't
legal technique, but things are still set upcommunicate well, you have four people who do
as a fight. The parties are regarded asnot communicate well. The case is now
adversaries, enemies in combat. When acontested and the cost and conflict level
divorce is conducted in our legal system, thewill go way up. Attorneys tend to ask for
spouses and their attorneys are expected tomore 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 wayNow you're off to a good, hot start and soon
lawyers work in it is a major cause ofyou'll have a hotly contested case, lots of
conflict, trouble and the high cost ofcost, and a couple of very upset spouses.
divorce. You want to have as little asFees in contested cases can run from tens of
possible to do with the legal system. It isthousands of dollars each all the way up to
designed  to  work  against  you.everything.
In spite of the way things seem, lawyers areSummary: Except in high-conflict cases, the
not always villains and not always to blamelegal system has little to offer. The things
for stirring up conflict. But even foran attorney can do for you are expensive,
lawyers who mean well, the tools they use andupsetting, and tend to increase conflict
the system they work in will usually increaserather  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 toIf you don't want to (or have to) use the
take any side of any case and make the mostlegal system, go around it--work out your
of it, how to argue, and how to get the mostarrangements 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 yourTake heart; I tell you exactly how to do
lawyer to communicate directly with yourthis in my articles, Divorce Roadmap: The
spouse--the adversary. It is expected,Route Around the Legal System and
instead, that your spouse will be representedDivorce--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 "talkfounder of Nolo Press. He started the
sense" to your spouse, or explain to yourself-help law movement in 1971 when he
spouse how you see things, or even help youpublished the first edition of How to Do Your
talk to each other. It means your attorneyOwn Divorce, and founded the paralegal
will always have a one-sided view of yourindustry in 1973. With more than a million
case and can never achieve an understandingbooks 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.



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