Exploring Options to a Court-Based Litigated Divorce
This material is adapted from the award-winning book by Ed Sherman, “Make any Divorce Better.” Ed Sherman is one of the founders of Divorce Helpline. His dedication to providing compassionate and cost-effective personalized legal support to those facing divorce resulted in the unique service model that distinguishes Divorce Helpline from other California divorce attorneys and divorce document services.
The legal system and the way divorce lawyers work in it is a major cause of conflict, trouble and high cost during a divorce. However, there are steps you can take to overcome some of the inherent challenges.
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.
In spite of the way things seem, lawyers are not always villains and not always to blame for stirring up conflict. But even for divorce lawyers who mean well, the tools they use and the system they work in will usually increase conflict.
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. One way to avoid this one-sided scenario is through divorce mediation, where you and your spouse work together with a neutral third party attorney who can help you reach a settlement agreement that takes both of your viewpoints into consideration.
If you choose instead to each retain a lawyer individually, he or she will definitely take your case into the contested cycle of the legal system because that’s the only thing they can do. There are no other formal tools a lawyer can use.
So, if you and your spouse can work out your own 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.
Although you may feel a lot of emotion about your divorce, if you can consider approaching it not as a fight but as a process that you must go through in order to move on with your life, it may make it easier to consider all of your options.
Divorce Helpline offers a number of packages and services that can help those who don’t want to use the legal system to go around it and work out arrangements that can result in a divorce settlement agreement and a legal divorce, without having to engage in a courtroom battle. In addition to divorce mediation, we provide coaching and consultation, divorce packages, private judge services and more.
You are not at the mercy of a court-based divorce system—you have choices. Please contact us and let us help you understand all of the ways you may want to approach your divorce or legal separation.