As a family-law attorney for over 35 years, I can tell you that the secret to a successful divorce is to minimize your involvement with the legal system and to avoid using lawyers who work in it. Where one spouse is a controller abuser -- 5 to 10 percent of all cases -- this advice does not apply, but for everyone else, going to an attorney as your first step is the worst thing you can possibly do and court is the worst possible place to settle divorce disagreements.

Here’s why.

To get a divorce, you need to tell the court how you will divide marital property and whether there will be spousal support. If you have minor children, you must also tell the court how they will be supported and parented after the divorce -- the visitation schedule. That’s all a divorce is about.

If you can be sure your spouse will not come to court to oppose you on any of these matters, all that’s left is some paperwork to get your judgment (decree in some states). This can be done inexpensively in California or Texas by using Nolo’s "How to Do Your Own Divorce" kit. In other states, you can get it done for a few hundred dollars by using a divorce typing service or by shopping your easy case around to various attorneys until someone gives you a fair price.

If your spouse is in the picture and cares about the terms, then you need to work out a written agreement on property, parenting and support. There is software to make this easy for you. Once you have an agreement, finishing your case is now just a matter of paperwork and can be done for a few hundred dollars as described above.

Inability to agree is almost never about the law, almost always about personalities and emotional upset. If you can’t agree, you don’t need a lawyer; you need a mediator or a collaborative law attorney. If you still can’t agree, you don’t need a lawyer, you need an arbitrator.

There are absolutely no solutions for personal problems in a lawyer’s office or in a courtroom. In fact, the legal system is almost certain to make things worse. This is because our adversarial legal system is based on argument and conflict, where one side argues, fights, and struggles to win, to beat the other side. This is a terrible way to settle family disputes. It increases conflict and expense, greatly increases the time it will take you to rebalance your life, and reduces chances for cooperative parenting.

Before you retain an attorney to represent you, remember this simple equation: "The more trouble you have = the more money your attorney makes." This is not a good basis for a smooth, successful negotiation.

Many attorneys become so frustrated with the legal system that they leave litigation behind in favor of more constructive forms of practice, such as mediation and collaborative law. These are both discussed below.

Better alternatives

Self-help. The things you can do to help yourself are far superior to anything an attorney can do for you. Specific steps you should take depend on your situation and are discussed in detail in my book, Make Any Divorce Better. If you follow my advice, things will get better soon.

Get organized. Before you can get advice, work out an agreement, or decide what you want and what is fair, you need to organize the facts and documents in your case. You will need to do this sooner or later no matter what, so why not do it yourself for free instead of paying a professional hundreds of dollars an hour to help you do it? Inexpensive worksheets are available to help you make this task easy. Doing this work won’t take long and it will help you understand your case, clarify your thinking, and make clear what questions you want to ask of an attorney, if you decide to see one.

Get advice. After you’re organized, if you have questions about the law in your state you should seek advice from an attorney who mostly does family law mediation, very little or no litigation. This way, you are more likely to get neutral, useful advice that will lead to solutions rather than court. Be sure to ask if the laws of your state are such that you can predict what any judge will order based on the facts and issues in your case. In most states, the outcome of any case is highly unpredictable, which is one of the reasons that a settlement by the parties is far superior to taking a chance on what some judge might decide, a stranger who does not have more than a few minutes to try to understand your family and the facts of your case.

Get help. If you and your spouse can’t work out a written settlement agreement on your own, you have two good alternatives.

Mediation. If both sides agree, you sit down with a mediator who will help you work out an agreement. Mediators are trained to help balance bargaining power, keep communications on point and useful, prevent bullying or abuse in the negotiation, and help the parties find common ground and eventual agreement. Mediation is usually very effective.

Many attorneys claim to mediate, but you should look for a family law specialist who is primarily a mediator, someone who does very little or no litigation. There are also some excellent non-attorney mediators but in general these are best used when the issues of your case are limited to personal discord and parenting. If your case involves money, property or support issues, you'd be better off with an attorney mediator who can bring knowledge of state law and local judges into the discussion. Ask if they do that, because many mediators will not bring in legal information even if they could, preferring each party to have separate counsel, something that greatly increases your cost.

Collaborative law. A collaborative law attorney represents you and speaks for you, but they enter into a written agreement with the other side not to go to court to solve problems. Instead, they concentrate on negotiation and mediation. Depending on your case, they might form a team with an accountant, therapist, child specialist, or financial planner. This approach only works if the party and attorney on the other side are willing to enter into this arrangement. Collaborative divorce has a good track record and even with all the professional services it will still cost less than a court battle. This is a new but rapidly growing subspecialty, so there may not be any collaborative lawyers near you. Go on the Internet and search "collaborative law" plus the name of your state or city, or call the local bar or other attorneys and ask if they know of any collaborative divorce lawyers near you. When you talk to one, find out how many other such cases they have conducted.

© 2008 Ed Sherman

Author

Ed Sherman is a senior partner in Sherman, Naraghi, Woodcock & Pipersky and a family law attorney since 1967. He founded Nolo Press in 1971 with How to Do Your Own Divorce in California and forever changed the way legal services are delivered through his many books on divorce, creation of the independent paralegal movement, and co-founding of Divorce Helpline. He has made it his life's work to help people keep their family problems out of the legal grinder -- our adversarial court system.