Choosing a divorce path is one of the most important decisions you will ever make. How you begin your legal divorce, and the divorce path you take, will in all likelihood determine how your entire divorce plays out. Have you ever tried to stop a snowball once it is rolling downhill? It is very difficult to change the course of a divorce once it has gotten off on the wrong foot. Once a case becomes contentious and lawyers are in the ring, the snowball is in motion.
Let me give you an example, using a real life scenario. Bob and Cindy (not their real names) are separating. Cindy wants the divorce, Bob doesn’t. Cindy tells Bob she doesn’t want to get lawyers involved. For the sake of the kids and to save money, she wants to keep the divorce as friendly as possible. Bob, who is still hoping to win Cindy back, agrees to do what she wants.
Bob moves into an apartment. They keep paying all household expenses jointly. The kids see Bob regularly. Cindy and Bob try a few times to discuss their property and issues such as whether to sell the house, but they disagree and so both avoid talking about it further. Their relationship related to the kids is a little strained at times, and they have some disagreements about the parenting schedule. However, most of the time they are able to work it out.
A few months pass. It is starting to sink in for Bob that Cindy is really leaving him. He starts to get angry. He suspects Cindy might be dating someone. Bob’s divorced friends tell him to go see a lawyer or he’s going “to get screwed.” Bob is fearful of losing his kids and he’s not sure how he will be able financially to handle child support and maybe spousal support (alimony). He is tired of contributing to the mortgage while he is living in an apartment. So he goes to a lawyer and the lawyer tells him he needs to file papers to get temporary orders in place for custody, visitation, child support and payment of bills, and also to get the case moving along. Bob agrees to all this and retains the lawyer. After all, the lawyer is the expert, right?
When Bob tells Cindy about this, she feels betrayed. When she receives a thick packet of legal papers, she’s now afraid of losing her legal rights. She runs out and hires a lawyer herself. The legal conflict has now officially begun. The snowball is rolling.
Because lawyers cost between $200 and $600 per hour (depending on where you live and level of expertise), Cindy and Bob will spend a lot of money from this point on, even if they eventually reach an out-of-court settlement on all matters. Divorce cases can cost $10,000 in a heartbeat, and can run more than $100,000 before it is all over. Even collaborative law, which is designed to be non-contentious and thus less expensive than traditional family law, can cost a lot when all is said and done.
So what could Cindy and Bob have done differently? I would have advised them to try private divorce mediation first. If one or both of them felt they needed full legal representation for personal reasons or because of the amount of assets involved, I would have advised them to hire collaborative lawyers who follow collaborative law principles.
Here’s my general rule about when to retain an attorney: If you have a situation of abuse where you need to protect yourself or your children, if you have a spouse who is running off with assets or refusing to pay appropriate support, if you’re not being allowed to see your kids, or your spouse is threatening to move far away with your kids without your consent—all these are situations when you should not hesitate to hire a lawyer to protect your legal rights. But for the run-of-the-mill divorce where your spouse is more or less playing by the rules already, there are better first steps than full legal representation.
This is not to say lawyers aren’t a valuable resource. I am big believer in everyone knowing their legal rights and using lawyers when needed. Anyone going through divorce should—early on—invest in a consultation with a reputable family lawyer. Spend a few productive hours in a lawyer’s office to get legal information and a case assessment. (Ask them what would be a fair settlement offer.)
Other ways to use lawyers productively is to consult with one during and after mediation to be sure you know what you are agreeing to. I also encourage people to pay a family lawyer to draft and review their final settlement agreement. All these things are definitely worth the money. In any divorce case, you have everything to gain by educating yourself before deciding what to do, and by using a professional to be sure the formal papers are done properly.
If your spouse is playing by the rules more or less, the danger of starting down the traditional legal path is this: the tone you set, what you say and do at the beginning of your divorce case, what you put in initial divorce papers–all these factors will influence how your divorce unfolds. Hiring a lawyer and serving papers is typically perceived by the other person as the launching of the first grenade. Divorce can easily turn into a war with an on-going series of battles.
I am a big believer in compromise, particularly if you have children together and will be having to communicate and interact for years to come. Whether it comes to dividing your property, or settling the issue of custody, you can win the battle and lose the war. Winning everything in court (which rarely happens anyway) —and even just fighting it out in court–will create a level of bitterness between you and your spouse that will harm your relationship forever. It can make it impossible to co-parent peacefully.
That doesn’t mean you should be a doormat or make a custody or financial decision that is not in your children’s best interests. It just means you should settle through compromise whatever you rightly can, use negotiation and mediation whenever you can, and be sure something is worth fighting for before you enter the adversarial court system.
Even if you don’t have children, a legal battle over property is often not worth it. It takes a huge emotional toll on everyone and can consume years of your life locked in controversy. It will also cost both of you a bundle in legal fees. I’ve seen time and time again where the fees and costs ate up most of what was won.
So what’s the moral of the story? Educate yourself fully about your options. Think carefully before you choose a divorce path, and even more carefully before you take legal action. Don’t let fear, anger or other people’s opinions guide your decisions. Think about the bigger picture and what you really want for both your immediate and long-term future.
Addendum: Assess your own case. There are certain cases where taking a friendly, peaceful approach generally won’t work. If there is abuse going on (either spousal or child abuse), you should get in touch with a family lawyer or contact your local Superior Court Family Law Division to get information about how to protect yourself, your children and your legal rights. If there is an imbalance of power in your relationship and you feel unable to stand up to your spouse, or if your spouse is a bad actor who refuses to work cooperatively, you should seek legal assistance. Use the court system and legal services for these types of cases.
Continue on to When to File for Divorce or a Court Hearing: General Guidelines.
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