Divorce--How to Beat the System

Of course you want to get your Judgment--that's the goal of your legal divorce--but you don't want to go through the adversarial legal system to get it. You don't want to get all tangled up with lawyers and courts, because the system is designed to work against you.

You don't go through the legal system, you go around it. You work outside the legal system to make arrangements and reach an agreement with your spouse.

By doing things yourself, you have far more control and far better solutions. Working outside the legal system is the way you get a low-conflict, low-impact, higher quality divorce.

To stay outside the legal system, do not retain an attorney. Neither spouse should retain one. The key word is "retain." We're not saying you should never get help from an attorney if you want it, just that you should not retain an attorney unless you have no other choice. If you follow the steps in my series of divorce articles, you may not need any help at all from an attorney. If you do, you will know how to keep it limited and under control.

Retaining an attorney means turning over both your responsibility for your case and control of it. The attorney represents you. You sign a retainer agreement, then you pay $1,000 to $5,000 "on retainer" and your attorney has now taken over control of your case. This is what they mean when they say, "I'll take your case."

And they do take your case--right into the high-conflict, low-solution legal system. They have to; it's the law.

Because you don't want to go into a system that works so hard against you, you must not retain an attorney unless you have no other choice. You should retain an attorney if you are facing immediate threat of harm. You need an attorney if you:

• Believe your spouse poses a danger to you, your children or your property;
• Can't get support from your spouse and have no way to live;
• Think your spouse is transferring, selling or hiding assets.

In such cases, you should get a good attorney right away; otherwise, you only want an attorney for information, advice and maybe some drafting and paperwork.

The attorney retainer is the poison apple--don't bite it.

If you feel uneasy about not retaining an attorney, don't worry; in the rest of my articles, you are going to learn very effective things you can do for yourself and how to get help if you need it.

There are three different kinds of cases that respond to self-help techniques:

• No agreement between the spouses is needed;
• An agreement will be fairly easy to work out;
• An agreement is needed but it may not be easy to work one out.

No agreement needed or spouse not involved. In some cases, an agreement between the spouses either isn't necessary or is not possible. In some cases, this is because there are no children, very little property, few debts to worry about, no need for support--in short, nothing to agree to. There are also cases where the Respondent simply will not participate and will not file a Response. Respondent is either long gone or simply doesn't care. This case will be relatively easy to complete.

Agreement needed. Most couples, however, do need an agreement or should have one. If you have children, you should work out a good parenting plan in a written agreement. If you have income or property worth protecting, or lots of debts to be paid, or if you need to work out spousal or child support arrangements, you should definitely have a written agreement. If Respondent is involved and cares how the divorce is going to be arranged, you should have an agreement.

Agreement will be easy to work out. If you think it will be no problem for you and your spouse to work out an agreement, the rest of this lesson is about the many advantages of a good agreement.

Agreement may not come easily. This describes the situation for most couples going through divorce. If, like most people, you don't think you can deal with your spouse, don't worry--see my articles on how to deal with disagreement and negotiate a settlement. You will learn that the things you can do to help yourself are far more effective than anything a traditional attorney can do for you. You will learn about the obstacles to agreement and how to overcome them, how to negotiate effectively with your spouse, and where to get help if you have trouble with the negotiations.

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 and 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, like California, 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.

If you're having trouble reaching agreement, read my articles on this topic starting with The Five Obstacles to Agreement.

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.

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