Divorce for Grownups

Divorce Need Not be Destructive--Here's Why

The "Best" Lawyers

The "best" lawyers may be the worst for your divorce.

In every town there are a couple of divorce lawyers who enjoy the enviable reputation of being among the best, toughest, smartest and most aggressive lawyers. These are the lawyers most likely to be hired by wealthy people or by people who define their divorce as a struggle to be won rather than as a settlement to be negotiated. And if one spouse hires one of these vaunted advocates, common wisdom has it that the other spouse must hire an equally prominent lawyer. This thinking, though very common, is deeply flawed and typical of the many myths that dominant popular conceptions about divorce and serve to make divorce the self fulfilling destructive prophesy it so often becomes. So before choosing one of the "hotshots" in town consider a few facts that might temper your search.

1. Almost all divorces, up to 99%, are resolved by negotiated settlement. Unless one of you is very crazy you don't need an accomplished trial lawyer because you are not going to trial; you need a good negotiator who understands what divorcing families need.

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2. Winning and losing in divorce is the stuff of popular fiction. Most divorces are settled within well developed local settlement norms and no lawyer can significantly improve your result one way or the other. About any competent lawyer will get about the same result as another.

3. The good divorce is defined as one in which all family members can thrive and in which parents can cooperate around the raising of children. The more contact you have with lawyers and courts the worse will be your divorce. The more litigation you have the more money you will waste on legal fees, the angrier you and your spouse will be, the longer will take your divorce and the more damage you will wreak on your kids. The lawyer who settles cases fastest with the least contact with court, who restrains your own passion for one-sided results, is liked rather than feared by colleagues and who knows both the law and the local settlement norms-is the best lawyer.

4. When you hire the hotshot lawyer, you set yourself up for several rackets that impoverish you while enriching your lawyer. The first is unnecessary discovery. Because the lawyer supports your fantasy that you are going to win a battle in court, it is easy for him/her to obtain your agreement for exhaustive investigation of your spouse's finances. But there are relatively few divorces in which finances are particularly complex. Middle class divorce in which both spouses are employed requires little financial investigation because there is nothing to hide and hiding would be practically impossible to do. So the lawyer who insists on reviewing every check for the past five years, who serves lengthy interrogatories on your spouse and insists on taking your spouse's deposition because "We have to be well prepared for trial.", is just running the bill. It costs you two to five thousand dollars when your lawyer takes the deposition of your spouse. And because you deposed your spouse, your spouse's lawyer feels constrained to depose you. So every unnecessary bit of discovery costs you twice; once when your lawyer does it and a second time when your spouse's lawyer reciprocates. Once you get sucked into this game it has to cost you twenty thousand or more. And most of it is totally unnecessary.

The second racket is unnecessary motion practice. Here, your lawyer plays to your false belief that the divorce is all about court. Need temporary support? File a motion in court. Want more time with the kids? File a motion in court. Your lawyer is only doing what you think he/she is supposed to be doing. But every time you go to court on motion it costs you and your spouse up to ten thousand dollars. It also convinces both of you that the other is so unreasonable that every disagreement can only be worked out in court. Good lawyers can talk to each other and work things out without frequent visits to court.

5. When you and your spouse hire lawyers that don't like each other that fact can cost you a lot of money. You end up paying for court struggles not because you and your spouse can't agree but because your lawyers can't agree.

 

Sam Margulies PhD, Esq. has been active in mediation for thirty years. He has written three books, numerous articles and has taught and consulted throughout the country.

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