Chapter XV
SHORTCUTTING
THE SYSTEM
A note of caution: Changes in divorce law are constant and can occur at any time either through new legislation or new state or federal court decisions. Each year, many such changes will occur. Your best and most current information will come from a lawyer who is competent in divorce practice and who keeps abreast of such changes and who is familiar with your own particular marital history.
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Divorce paper sellers One lawyer divorces Mediation
Various contemporary alternatives are offered to consumers concerning marital dissolution. The lure of some offerings is to save money, even as it is burned up on television. The attraction of others is to obtain a divorce as peacefully as possible. Both incentives make apparent good sense.
Divorce Paper Sellers Top of Chapter
You have see television and television guide ads which declare, "Don't Burn Up Your Money"; "Divorce $68 As Seen On TV"; "Divorce Never Undersold"; and one I've seen even went so far to state "Certified" (but not indicating by whom or as to what). We live in the era of "The Divorce Kit." Whether such kits constitute the unauthorized (or authorized) practice of law is discussed in Survey of Oklahoma Divorce & Modification Issues, as are possible theories of civil liability if the kit-makers do a bad job.
As was indicated in Chapter 1, Attorney and Client Relationship, when you have plumbing problems, you are not required to hire a plumber. When you have a broken bone, you are not required to employ a physician. You may do it all by yourself. You may obtain your divorce by yourself, also, by purchasing a set of papers.
Aside from the general prohibition against practicing law without a licence from the State which pertains to all citizens, the marketers of divorce papers are regulated by no law or state agency. They are not certified as competent by any state board or commission. They cannot be "disbarred" because they are not "barred" in the first place. They cannot be sued for "malpractice" because they are not "practicing" anything (even though civil actions may be possible if damages result, as is discussed in Survey of Oklahoma Divorce & Modification Issues). They are selling paper.
My strong advice is this: Avoid this alternative.
If you have read Loudenback's Lay Divorce Guide, you may have begun to see, hopefully to understand, that competent legal advice is desirable in the circumstance of a failed marriage.
If you are indigent, look under the telephone directory heading, "Attorneys," for the listing, "Legal Aid." If you qualify for their services, you will receive the advice and representation of competent attorneys. Many private attorneys will accept pro bono (free) referrals from Legal Aid when it cannot accept your case because of overflow or other reason.
If you do not qualify for public legal assistance, either re-read Chapter 1, Attorney and Client Relationship, or fix your own plumbing, as you will.
One Lawyer Divorces Top of Chapter
Ethically and legally, a lawyer may not have two masters with competing interests. In any given litigation context (including divorce), one lawyer may not represent opposing parties. Recall what has been said previously. A lawyer is the alter-ego of one particular client. He/she receives information from the client confidentially; he/she gives private counsel and advice; he/she is charged with the task of providing zealous representation of that client in attempting to accomplish choices the client has made.
It is impossible (in the opinion of this author, at least) that one lawyer give counsel to and represent the interests of both spouses in divorce litigation, be that litigation "uncontested" or not. "Is this fair?" is a question which requests the legal opinion of a lawyer. The answer to the question communicates the lawyer's advice.
A lawyer is the advocate of a client. He/she is not the judge of what is "fair." That person wears a black robe and sits on a high bench in the courthouse.
If one spouse elects not to have legal representation, that decision is a valid one, even if it represents poor judgment. In such instances, the lawyer who represents a spouse should make very clear to the unrepresented spouse that he/she represents the other spouse and cannot give legal advice to the other. Only one item of advice may be given: Secure legal counsel. That's it. Nothing more in the nature of advice may be given.
Mediation Top of Chapter
Divorce is a determination by the state that the marital relation between two formerly married persons no longer exists. No method exists to terminate a marital relation other than through the courts. When agreements are reached between divorcing parties concerning the issues of the case, those agreements are usually negotiated by the spouses through their attorneys, they having been granted the express authority of their clients to enter into such an agreement. See Chapter 12, Settlement Negotiations. An agreement made by an attorney on behalf of a client where such authority is not conferred is generally not valid or binding upon the client.
This traditional process often produces the parties' agreement, and the litigation is concluded by the Court's approval of the agreement in the decree of divorce.
Mediation is an alternative process by which the parties may come to reach agreement through face-to-face negotiations, sometimes unaided by the physical presence of or negotiations through their attorneys, even if the parties have legal representation. The persons directly involved in the mediation process are the parties and a person called a mediator. For a more particular discussion of the process and its legal underpinnings, see Survey of Oklahoma Divorce & Modification Issues.
A mediator is essentially a facilitator, a person who assists the parties in the reaching of an agreement. The function of a mediator is not to give legal advice, even if he/she is (coincidentally) an attorney. Neither are they are "judges" in any sense of the word. They do not decide how an issue should be resolved. Their sole function is to aid the parties in reaching their own agreement.
Ordinarily, the attempt to reach such an agreement occurs in "sessions" at the mediator's office. The persons involved in a session are the parties and a mediator. Although the parties may have private legal counsel, their attorneys are not necessarily present. (My suggestion is that you not agree to mediation unless your attorney will be present to listen and advise you as the sessions progress.)
If such an agreement is reached, it is typically reduced to written form by an attorney. In this capacity, the attorney is not necessarily an advisor but is instead a technician and scrivener who will insure that the document satisfies any necessary legal requirements.
In some states, mediation has become an integral part of the divorce process, and that is likewise true in Oklahoma. Even so, mediation is used less frequently than is the traditional litigation approach.
The present practices and standards of mediators have considerable variance. An organization exists under the auspices of the Oklahoma Supreme Court Administrative Director of The Courts (405-521-2450) which might offer some useful guidance to interested persons. And, many trial judges will maintain lists of mediators. Call a particular judge's clerk or bailiff to learn if such a list is available.
The opinions of this author are these:
In most instances, the ambience of the divorce circumstance is neither tranquil nor objective. Usually present are one or more of certain kinds of pairs: outrage-guilt; domination-submissiveness; betrayal-depression; possession-escape; manipulator-manipulated. Such types of things do not produce negotiators who are on the same emotional level and is best approached with legal counsel involved in the process. But, good mediators combined with well-informed attorney/client teams (so to speak) often produce very satisfactory litigation agreements.
But, even if the spouses possess emotional and intellectual parity and each wishes fairness, as may be evident from Loudenback's Lay Divorce Guide, there is much complexity involved with divorce law and the process of negotiation involves considerable interplay between the categories of things which are involved. Again, mediation is best undertaken with a lawyer who is competent in divorce practice.
Obtaining one or several pieces of advice from a skilled attorney before entering a mediation session is not enough. A dry lesson teaches a would-be swimmer to swim not even a yard, much less the length of the pool.
If the selection of a lawyer well-versed in divorce practice is important (i.e., not just any lawyer will do), it is doubted by this author that non-lawyers possessing even less acumen can properly lead the parties into making knowledgeable divorce agreements with which long-term satisfaction will be had.
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