Family Law

How Our Adversarial Legal System Complicates Divorce

By Dan Nunley

What I am about to say does not apply to a small minority of divorce cases - those where spousal abuse or child abuse is involved, or where one spouse is a control freak, etc. But for the vast majority of divorce cases, minimizing involvement with our court system is the way to go. You can believe that the advice I am giving you is heartfelt because as an attorney, it certainly is not self serving for me to advise people seeking a divorce to avoid seeing a divorce lawyer early on. Based on my personal experience, it is my opinion that the courtroom is the worst possible place to resolve marital problems.

Our adversarial legal system is much better equipped to resolve contract disputes and personal injury claims than it is to settle marital dissolution. Generally, litigating divorce matters only increases the animosity and hurt on both sides. Our adversarial legal system is based on argument and conflict. Each side’s goal is to win, to beat the other side. Emotions spiral out-of-control and as far as strategy and tactics are concerned, all becomes fair in love and war. This is a pitiful way to resolve marital disputes.

Instead of starting the divorce process by visiting a lawyer, sit down and talk rationally with your spouse. If the two of you can amicably reach an agreement on all necessary issues, such as child custody, child support, division of assets and debts, etc., I can guarantee that you will be much, much happier in the long run. By resolving matters on your own, you remain in control of your life. This will certainly lead to a better emotional state for yourself and will help to reduce the financial cost associated with divorce.

If you and your spouse cannot agree on the terms of the divorce, I would suggest that you need a mediator more than a lawyer. Inability to reach agreement is usually more about hurt feelings than legalities. Before you run to a divorce lawyer, be mindful of the fact that the more disagreement and fighting there is, the more money you’ll be paying in legal fees. In mediation, you and your spouse will sit down with an unbiased third party who will help you and your spouse reach an agreement. The mediator is trained to help balance bargaining power, to prevent bullying, to keep the discussion on point, and to assist you in reaching common ground.

Once agreement has been reached, you can draft the necessary legal documents and represent yourself in court, or you can hire an attorney to draft the documents and walk you through the legal maze for a reasonable fee.

If you live in the Tulsa metro area, and need representation in an uncontested or agreed-to divorce, feel free to contact me for more information.

Full post as published by Oklahoma Family Law Blog on August 06, 2008 (boomark / email).