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.
Instead of going through the legal system, you go around it, and 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, neither spouse should retain an attorney. The key word is "retain." I'm not saying you should never get help from an attorney if you want it, just that you shouldn't retain an attorney unless you have no other choice. If you follow the steps in my book, Make Any Divorce Better, you may not need any help at all from an attorney. If you do, you'll 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, as when you are facing immediate threat of harm. You need an attorney if you:
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 Make Any Divorce Better I reveal 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 needed or spouse not involved. An agreement isn't necessary or is not possible if there are no children, very little property, few debts to worry about, or 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 because he or she is either long gone or simply doesn't care. This case will be relatively easy to complete.
Agreement needed. 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 article 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 you don't think you can deal with your spouse, don't worry—you can learn how to deal with disagreement and negotiate a settlement in Make Any Divorce Better, 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, which means you get to 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. But 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.
If you have trouble reaching agreement, you can learn about the obstacles to agreement and how to overcome them, plus learn the secrets of negotiating agreement, including ten ways to divide property without a fight, in Make Any Divorce Better. The agreement you 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!
Copyright 2007 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. His latest book is Make Any Divorce Better. You can order his books from www.nolodivorce.com or by calling (800) 464-5502.