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 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 the system is so complicated that 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 you 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 it 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 the attorneys are expected to struggle against one another and try to “win” the case, to “beat” the opponent.

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 are 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 it 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 a case and make the most of to, 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 even “talk” to your spouse, or explain to your spouse how you see things, or even help you talk to each other. It means that 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 is 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 documentation and information under oath.

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 don’t communicate well. The case is now contested and the cost and conflict level will go way up. Attorneys tend to ask for much more than they expect to get; it’s considered “good” practice. Your spouse’s attorney will oppose your lawyer’s exaggerated demands by offering less than you are willing to give and by attacking you and your case at the weakest points.

Now you’re off to an aggressive, confrontational start and soon you’ll have a hotly contested case, lots of cost, and a couple of very upset spouses. It happens almost every time. Fees in contested cases can run from $10,000 each…all the way up to everything.

Take heart. Follow my advice and you can beat the system.

To stay outside the legal system, do not retain an attorney. Neither spouse should retain one. The key word is “retain”. I’m not saying that 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. 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 $3,000 (or $5,000 or $10,000 or $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 in to 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:

• 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!

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