Legal System

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 pretrial 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; we are going to tell you exactly how you can beat the system.

Advantages to an agreement

The marital settlement agreement [MSA] is your key to avoiding lawyers and the legal system, but that's not all --it has many other important advantages. Your MSA actually becomes your Judgment. It is either attached to or incorporated in the Judgment or the Judgment will be written to include all the terms of your agreement.

With a good MSA you get total control over your Judgment because you decide all the terms ahead of time. Without an agreement, you can't be sure exactly what some judge might do. The MSA has far more depth, detail, flexibility and protection than a plain Judgment. Almost anything that's on your mind or in your lives can be included and resolved any way you like.

Some states have simplified procedures that allow you to get your divorce without going to court --if you have an agreement. Without an agreement, you almost certainly will have to go to a hearing to get your Judgment.

What's most important is that you get a better divorce outcome when you work out an agreement. And with an agreement, people tend to heal faster and it just plain feels better.

The agreement you are about to negotiate is very valuable and worth working very hard to get. If you work it out with your spouse outside the system, you beat the system!

THE MAIN MESSAGE. To beat the legal system, you don't go through it, you go around it. These are your keys to the high road:

• you and your spouse work out an agreement
• outside the legal system
• without either spouse retaining an attorney.
• you can get advice from attorneys, you can get an attorney/mediator to help you work out your agreement, but you do not retain an attorney to handle your divorce unless the attorneys on both sides are committed to a collaborative process.

Once you have an agreement, you have an uncontested case and there's nothing left to do but red tape and paperwork. If you don't need an agreement, so much the better; just do the paperwork and you’re done.

• five obstacles to agreement
• The next three sections are about how to deal with disagreement --from simple difference of opinion to active upset and anger-- and some specific steps that will help you reach an agreement. As you will see, the things you can do yourself are far more effective than anything a lawyer can do for you.
• More than 90% of all cases are settled before trial. Unfortunately, too many are settled only after the spouses have spent their emotional energies on conflict and their financial resources on lawyers. The time and effort spent battling has impaired their ability to get on with their lives and may have caused serious psychic damage to themselves and their children. The spouses could have saved themselves all that simply by agreeing to settle earlier. Why didn't they?
• Okay, here you are, heading for a divorce; your spouse is going to be involved and you want to work out an agreement. What's so hard about that? Why don't you just do it? Easier to say than do, isn't it? There are good reasons why it's hard for spouses to work out an agreement--five, to be exact:
• emotional upset and conflict;
• insecurity and fear;
• ignorance and misinformation;
• the legal system and lawyers; and, finally,
• real disagreement.

To get an agreement, in or out of the system, with or without an attorney, you have to overcome the five obstacles. Let's look at them in a little more detail to see what you're dealing with.

The five obstacles to agreement

1. Emotional upset and conflict: This is about high levels of anger, hurt, blame, and guilt - a very normal part of divorce. If one or both spouses are upset, you can't negotiate, have reasonable discussions or make sound decisions. Complex and volatile emotions become externalized and get attached to things or to the children. When emotions are high, reason is at its lowest ebb and will not be very effective at that time. There are various causes of upset: The divorce itself, stress of major change, broken dreams, fears of change, fear of an unknown future; Different readiness to accept the idea of divorce and willingness to precede - the hidden cause of conflict in many cases; History of bad communication habits or conflict; Particular events or circumstances.
2. 2. Insecurity, fear, lack of confidence, unequal bargaining power: You can't negotiate if either spouse feels incompetent, afraid, or that the other spouse has some big advantage. Divorce is tremendously undermining and tends to multiply any general lack of self-confidence and self-esteem. Also, there are often very real causes for insecurity: lack of skill and experience at dealing with business and negotiation, and lack of complete information and knowledge about the process and the marital affairs.
3. It doesn't matter if insecurity is real or reasonable; it is real if it feels real. Ignorance and misinformation: Ignorance about the legal system and how it works can make you feel uncertain, insecure and incompetent. You feel as if you don't know what you are doing ...and you are right. Misinformation is when the things you think you know are not correct. Misinformation comes from friends, television, movies, even from lawyers who are not family law specialists. It can distort your expectations about your rights and what's fair. It's hard to negotiate with someone who has mistaken ideas about what the rules are.
4. Fortunately, both conditions can be easily fixed with reliable information. The legal system and lawyers: The legal system does not help you overcome obstacles to agreement but, rather it is one of the major obstacles that you have to overcome. The legal system is designed to work against you. You want to avoid the legal system as much as possible - and you can. You can beat the system.
5. Real disagreement: These are the real issues that you want to deal with rationally and negotiate with your spouse. Real disagreement is based on the fact that the spouses now have different needs and interests. After dealing with the first four obstacles, these real issues may turn out to be minor, but even if they are serious, at least they can be negotiated rationally.