Too many people think that doing their own divorce means filling out some forms and maybe getting their spouse to sign an agreement. That’s a very big mistake.
Divorce is not about filling out forms, it is about thinking things out and making sound decisions. Likewise, if your case calls for a marital settlement agreement, having it typed and signed is not the point. The value of an agreement is the depth and detail with which you think things through and work things out together.
A lot of people are reluctant to really think about their case and make decisions. And they will do almost anything to avoid talking things over with their spouse. This is completely understandable, given the nature of divorce, but it is something you eventually need to do to get a good divorce instead of becoming a victim of divorce.
Doing your own divorce means that you do not retain an attorney. No one should unless they have to, but that doesn’t mean you can’t get advice and help.
Doing your own divorce means that you take responsibility for your case, your decisions, your life. You get information and advice, then –maybe with some help– you think things through. You find out what the rules and legal standards are and how they apply to your case, then you decide what what’s fair, what you want, how to deal with your spouse, what to do next.
If your spouse is in the picture and cares what happens, it means detailed discussions –perhaps with help– to reach a thoroughly negotiated agreement. It’s only natural to feel concerned about doing this, but don’t worry: Lesson 2 tells you exactly how you can deal with disagreement and negotiate a settlement with your spouse.
At Divorce Helpline, we help over 4,000 people each year and from them we have learned why people become victims of the legal system.
People often feel they can’t deal with their divorces, their spouses, themselves. They feel overwhelmed, so they want someone else to take over and just do it, to make it go away. The attorney says, I’ll take your case, I’ll take care of everything, I’ll get it done for you. It sounds good, but it isn’t true.
In the end, even if you retain an attorney, you will be gathering all the information anyway and making your own decisions. More than likely, you will end up negotiating the terms yourself. Most people do, even when they are represented. They eventually find that they can do it better themselves.
The legal divorce has very limited concerns: to get a judgment of divorce, you have to make arrangements for your property, your children, and support (if any). If you have a high degree of conflict, it is also about keeping the peace and protecting you, your children and your property. That’s it; that’s all the legal divorce is about.
The law is used to impose a decision in your case only when there is a disagreement that has been brought into court. If you can reach a fair written agreement with your spouse, you can get almost any terms you like without much reference to laws. But, where children are concerned, a judge might take a look at your terms to make sure they are reasonably well supported and protected.
All you get from your legal divorce is a piece of paper –a Judgment– with findings of fact and court orders on the above subjects. That’s all. This is what all the fuss is about; this is what people go to attorneys for and spend tens or hundreds of thousands of dollars to get –a piece of paper with orders about peace, property, custody, and support.
You might think that a legal divorce will solve your problems, but it probably won’t and it is critically important that you understand this so you don’t expect too much from the legal divorce–or some lawyer–and set yourself up for frustration and disappointment.
Your real divorce is about ending one life and beginning another, then making it work –spiritually, emotionally and practically. The real divorce is about breaking old patterns, making a new life and seeking a new center of balance. It’s about doing your best with the hand you’ve been dealt.
Understanding some basic things about how the real divorce works will help you enormously in dealing with yourself, your spouse and your list of practical problems.
How you feel is probably the most real thing in your life right now. Nothing else in your life is as real as your pain, your fear, your anger, hurt, guilt, tension, nervousness, illness, depression –whatever it is you are feeling.
The practical tasks you face are also very real: how to get by financially, how to rearrange the parenting of your children, what to say to family and friends, what to do next, and so on.
In your real divorce, then, you face these challenges:
Emotional: This is about breaking (or failing to break) the bonds, patterns, dependencies, and habits that attach you to your ex-spouse. It’s about learning to let go of anger, fear, hurt, guilt, blame, and resentment. You learn about past mistakes so you don’t have to repeat them. You develop a balanced view of yourself, your ex-spouse, and your marriage. You create self-confidence and an openness to new intimate relationships.
Physical: Our minds and bodies are not separate and life does not come in these neat boxes. Emotions –especially strong ones that are ignored, denied or repressed– are frequently expressed physically. During divorce, people tend to experience a lot of tension and nervousness. They get ill frequently and have accidents. This is a time when you must take extra good care of your health, pay close attention to your body, and be extra careful when driving.
Practical: This is about taking care of business on the physical plane –including the legal divorce. It’s the nuts and bolts of what to do, where to go, and how to get there as you begin to build a new life for yourself. You need to create safety and security for yourself and your children; to make ends meet in a new life-style that produces what you need and needs no more than you can produce.
Going through major life changes –in other words, re-creating your life– is demanding, hard work, but it may be the most important thing you ever do. And, unless you decide to get counseling or go into therapy, the real divorce won’t cost a dime!
The legal divorce vs. your real divorce
The legal divorce has very limited concerns: to get a judgment of divorce, you have to make arrangements for your property, your children, and support (if any). If you have a high degree of conflict, it is also about keeping the peace and protecting you, your children and your property. That’s it; that’s all the legal divorce is about.
The law is used to impose a decision in your case only when there is a disagreement that has been brought into court. If you can reach a fair written agreement with your spouse, you can get almost any terms you like without much reference to laws. But, where children are concerned, a judge might take a look at your terms to make sure they are reasonably well supported and protected.
All you get from your legal divorce is a piece of paper –a Judgment– with findings of fact and court orders on the above subjects. That’s all. This is what all the fuss is about; this is what people go to attorneys for and spend tens or hundreds of thousands of dollars to get –a piece of paper with orders about peace, property, custody, and support.
You might think that a legal divorce will solve your problems, but it probably won’t and it is critically important that you understand this so you don’t expect too much from the legal divorce–or some lawyer–and set yourself up for frustration and disappointment.
Your real divorce is about ending one life and beginning another, then making it work –spiritually, emotionally and practically. The real divorce is about breaking old patterns, making a new life and seeking a new center of balance. It’s about doing your best with the hand you’ve been dealt.
Understanding some basic things about how the real divorce works will help you enormously in dealing with yourself, your spouse and your list of practical problems.
How you feel is probably the most real thing in your life right now. Nothing else in your life is as real as your pain, your fear, your anger, hurt, guilt, tension, nervousness, illness, depression –whatever it is you are feeling.
The practical tasks you face are also very real: how to get by financially, how to rearrange the parenting of your children, what to say to family and friends, what to do next, and so on.
In your real divorce, then, you face these challenges:
Emotional: This is about breaking (or failing to break) the bonds, patterns, dependencies, and habits that attach you to your ex-spouse. It’s about learning to let go of anger, fear, hurt, guilt, blame, and resentment. You learn about past mistakes so you don’t have to repeat them. You develop a balanced view of yourself, your ex-spouse, and your marriage. You create self-confidence and an openness to new intimate relationships.
Physical: Our minds and bodies are not separate and life does not come in these neat boxes. Emotions –especially strong ones that are ignored, denied or repressed– are frequently expressed physically. During divorce, people tend to experience a lot of tension and nervousness. They get ill frequently and have accidents. This is a time when you must take extra good care of your health, pay close attention to your body, and be extra careful when driving.
Practical: This is about taking care of business on the physical plane –including the legal divorce. It’s the nuts and bolts of what to do, where to go, and how to get there as you begin to build a new life for yourself. You need to create safety and security for yourself and your children; to make ends meet in a new life-style that produces what you need and needs no more than you can produce.
Going through major life changes –in other words, re-creating your life– is demanding, hard work, but it may be the most important thing you ever do. And, unless you decide to get counseling or go into therapy, the real divorce won’t cost a dime!
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 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 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 your’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, fear of change, fear of an unknown future;
Different readiness to accept the idea of divorce and willingness to proceed –the hidden cause of conflict in many cases;
History of bad communication habits or conflict;
Particular events or circumstances (a new lover, a new debt)
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.
It doesn’t matter if insecurity is real or reasonable; it is real if it feels real.
3. 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.
Fortunately, both conditions can be easily fixed with reliable information.
4. 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
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.
Look again at the map that was discussed in the section, The Divorce Roadmap.
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 this short course, 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 Rs 10,000 to Rs 25,000 “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 this course, 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 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 –Lesson 2 tells you exactly how to deal with disagreement and negotiate a settlement.
In the rest of this short course 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.
The solutions are in your hands. Apart from the legal system –which you can avoid– all obstacles to your agreement are personal, between you and your spouse and between you and yourself.
Take care. Pay special attention to emotional upset and especially insecurity and fear. These are the forces that drive people into a lawyer’s office. You want to avoid doing anything that might increase the upset and fear of either spouse.
The upset person is saying, “I can’t stand this, I won’t take it anymore! I’m going to get a lawyer!”
The insecure person is saying, “I can’t understand all this, I can’t deal with it, I can’t deal with my spouse. I want to be safe. I need someone to help me. I’m going to get a lawyer.”
And this is how cases get dragged into unnecessary legal conflict.
You need to arrange things so both spouses are comfortable about not retaining an attorney. If you think your spouse may be upset or insecure, you have to be very careful and patient. If you are feeling incapable of dealing with your own divorce, the information in this book will help a lot and you will see that you can get all the help and support you need without retaining an attorney.
How lawyers can help without hurting
Legal information and advice. Lawyers who specialize in divorce can be extremely useful to you when they do not insist on being retained to do the whole divorce. It can be very cost-effective to get information and advice on specific subjects or a case evaluation. That may be all the legal help you will need. It is usually important to know what the rules are in your state and whether or not one can reasonably predict what a judge would do if presented with your facts.
If the standards in your state are predictable, you can use that to guide your negotiations. An experienced divorce attorney can also help sort out the many tax issues of divorce for you.
Drafting your agreement. You may decide to have a lawyer draft your marital settlement agreement or look over one you have made yourself. Writing an agreement that is clear, unambiguous and legally correct can be a technical challenge, so unless you get your language directly from a reliable source and do not depart much from it, then having a lawyer draft your agreement, or at least check it, it s a very good idea.
Collaborative law. This is a very small but very interesting movement. These lawyers represent you fully and require a retainer agreement, but in the agreement they state that they will not use litigation or go to court for any adversarial purpose. Instead, they emphasize negotiation and mediation. The “collaborative” part means that the attorneys on both sides should have this orientation so they can work well together to settle the case. When up against a traditional attorney, the case is far more likely to go into litigation.
At the present time, Collaborative Law is well-established only in Minneapolis, thanks to the pioneering work of Stuart Webb. One of the goals of the Divorce Helpline Directory is to find collaborative lawyers and provide a vehicle for them to reach the public.
Who to pick? You want three things in a divorce attorney: experience, reliability, and a good attitude. Your lawyer should specialize in divorce –at least 50% of their case load. Your attorney must be someone you can trust and work with comfortably, someone who has your confidence.
You are looking for an attorney who can:
communicate in plain English
simplify instead of complicate your case
provide neutral, settlement-oriented advice
seek practical solutions instead of legal ones
If you want advice, be sure to look for a lawyer who is trained in divorce mediation and who practices it professionally. Mediation-minded attorneys are more likely to give you neutral and problem-solving advice, whereas traditional attorneys tend to be more oriented toward conflict and their advice tends to be adversarial.
If you want to know the law in your state or get an appraisal of likely outcomes in your local courts, or drafting of a marital settlement agreement, then you are more concerned with the attorney’s knowledge and experience. Attitude is a little less relevant here, but watch out for the attorney who seems to make things more complicated rather than less, or who urges you to do things that could lead to conflict.
We suggest that you generally avoid anyone who seems cynical, unnecessarily aggressive, or moralistic. For most cases, you will want to look for someone who prefers to avoid conflict in favor of negotiation and compromise. You are trying to find an attorney who prefers to keep the case cool.
Avoid situations where you don’t like the way the attorney or the staff treat you. Look for lawyers who listen well to what you want and who seem willing to do things your way. Make sure the attorney knows it is your life, your case, and that you are in charge
How to use your lawyer. Be very well prepared. Know your facts, know what you want to ask, and know exactly what you want the lawyer to do for you. Plan each conversation; make an agenda; write down the things you want to talk about; take notes on every conversation; keep track of time spent on all phone calls and meetings.
Keep a file for all your notes, letters and documents. Do as much as possible on the phone and by mail to keep office time at a minimum. Let the attorney know that you expect phone calls to be answered by the next working day.
When you talk to a lawyer, stick to the facts. Don’t just chat, ramble, or complain about things your spouse did unless you actually want your lawyer to do something about it. Lawyers cost too much for you to use them for company, sympathy or consolation –that’s what family, friends and counselors are for. A lawyer is not the right person to make your decisions or lead your life: you are.
Being in control of your own case and your own life is the single best thing you can do in any divorce, so it is essential that you have a lawyer who can work cheerfully on that basis. If you are well prepared, organized and business like, that will help the lawyer to see that you are in charge of things.
Walk softly and carry a big stick. If you become dissatisfied with your lawyer, you don’t have to fire them because they haven’t been retained. Just stop. However, if you have a contract (retainer) with your lawyer, you have to take some formal steps to discharge the lawyer from your case. Go to the Reading Room and look at the article How to fire your lawyer