| If there were no legal system, no lawyers and no | | | | own. |
| courts, divorce would still be difficult and it would | | | | |
| still take time to go through it. Divorce is at least | | | | If you retain a lawyer, he will definitely take your |
| a major crossroad in your life, maybe even a | | | | case into the contested cycle of the legal system |
| full-blown life crisis. | | | | because that's the only thing he can do. He has to. |
| | | | There are no other formal tools a lawyer can use. |
| So, here you are, you and your spouse, going | | | | |
| through your personal life changes, when the | | | | The primary tools the lawyer uses are pre-trial |
| State comes along and says, "Excuse me! You | | | | motions and discovery. An attorney can take you |
| can't go through this without us. Your divorce has | | | | and your spouse into court to get temporary |
| to be conducted on our field and under our rules . | | | | orders for support, custody, visitation or keeping |
| . . and you can't even hope to understand our | | | | the peace. An attorney can use formal discovery |
| rules. Oh, by the way, this divorce system we're | | | | to get documents and information under oath. |
| going to put you through has no tools for helping | | | | |
| you solve problems or negotiate with your | | | | So, if you and your spouse can work out your |
| spouse. In fact, our system is based on conflict | | | | own temporary arrangements and share all |
| and it is specially designed to cause trouble and | | | | information openly, you'll have no need for those |
| greatly increase your expense. Please pay your | | | | incredibly expensive legal tools. You can keep your |
| filing fees on the way in." | | | | case out of lawyers' offices and out of court. |
| | | | |
| Our system of justice is known as an | | | | But, if either spouse retains an attorney, that |
| "adversary system." This is the nature of the | | | | attorney will invariably write formal letters, file |
| beast. It began hundreds of years ago in the | | | | legal papers, make motions, and do discovery. |
| middle ages with "trial by combat," where people | | | | These actions will surely cause the other spouse |
| with a disagreement would fight it out and | | | | to get an attorney, too. Now, instead of two |
| whoever survived was "right." Today, physical | | | | people who don't communicate well, you have |
| contact is no longer a recognized legal technique, | | | | four people who do not communicate well. The |
| but things are still set up as a fight. The parties | | | | case is now contested and the cost and conflict |
| are regarded as adversaries, enemies in combat. | | | | level will go way up. Attorneys tend to ask for |
| When a divorce is conducted in our legal system, | | | | more than they expect to get; it's considered |
| the spouses and their attorneys are expected to | | | | "good" practice. Your spouse's lawyer will oppose |
| struggle against one another and try to "win" the | | | | your lawyer's exaggerated demands by offering |
| case, to "beat" the opposition. | | | | 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 | | | | Now you're off to a good, hot start and soon |
| "adversarial," that is, aggressive and combative. | | | | you'll have a hotly contested case, lots of cost, |
| The adversary system and the way lawyers | | | | and a couple of very upset spouses. Fees in |
| work in it is a major cause of conflict, trouble and | | | | contested cases can run from tens of thousands |
| the high cost of divorce. You want to have as | | | | of dollars each all the way up to everything. |
| little as possible to do with the legal system. It is | | | | |
| designed to work against you. | | | | Summary: Except in high-conflict cases, the legal |
| | | | system has little to offer. The things an attorney |
| In spite of the way things seem, lawyers are not | | | | can do for you are expensive, upsetting, and tend |
| always villains and not always to blame for stirring | | | | to increase conflict rather than reduce it. |
| up conflict. But even for lawyers who mean well, | | | | |
| the tools they use and the system they work in | | | | If you don't want to (or have to) use the legal |
| will usually increase conflict. Law schools do not | | | | system, go around it--work out your |
| require courses in communication or negotiation. | | | | arrangements outside the legal system and, if |
| Rather, they stress manipulation of rules of law, | | | | necessary, get limited assistance, in the form of |
| aggressive and defensive strategy, how to take | | | | information and advice, from attorneys who do |
| any side of any case and make the most of it, | | | | not represent the spouses. |
| how to argue, and how to get the most financial | | | | |
| advantage in every situation. | | | | Take heart; I tell you exactly how to do this in |
| | | | my articles, Divorce Roadmap: The Route Around |
| Professional standards of practice dictate how a | | | | the Legal System and Divorce--How You Can |
| lawyer will conduct your case. For example, | | | | Beat the System. |
| professional ethics forbid your lawyer to | | | | |
| communicate directly with your spouse--the | | | | Copyright 2005 Ed ShermanEd Sherman is a |
| adversary. It is expected, instead, that your | | | | family law attorney, divorce expert, and founder |
| spouse will be represented by an attorney and | | | | of Nolo Press. He started the self-help law |
| your lawyer can only communicate through your | | | | movement in 1971 when he published the first |
| spouse's lawyer. | | | | edition of How to Do Your Own Divorce, and |
| | | | founded the paralegal industry in 1973. With more |
| This means that your attorney can't "talk sense" | | | | than a million books sold, Ed has saved the public |
| to your spouse, or explain to your spouse how | | | | billions of dollars in legal fees while making divorce |
| you see things, or even help you talk to each | | | | go more smoothly and easily for millions of |
| other. It means your attorney will always have a | | | | readers. You can order his books from or by |
| one-sided view of your case and can never | | | | calling (800) 464-5502. |
| achieve an understanding any greater than your | | | | |