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Published on 5/3/12 In the Huffington Post
I have recently been using a special term for a certain type of fast and easy divorce: “surgical divorce”. This type of divorce is actually quite frequent among my divorcing clients.
A “surgical divorce” is the kind of divorce where the spouses do not want to deal with each other. They just want to settle the terms of their divorce in the most efficient way possible and be done with it. Mediation and collaborative law are not suited for these people.
Sometimes one of the parties has moved on to another relationship and wants the current marriage to be over as fast as possible. Or maybe it was a marriage that has been lifeless for many years, and parties finally want to do the work to get the formal divorce.
A “surgical divorce” is helpful for these situations. Is a skillful legal operation that is efficient and quick. Like surgery, the “surgical divorce” cuts the legal ties of marriage like a scalpel cutting out a tumor. (Sorry for the analogy.) Here’s a description of the types of divorces where a “surgical divorce” is appropriate, and what the process is like.
“Surgical divorce clients” have minimal disputes with their soon-to-be former spouse. They may have worked out most (or even all) issues with their spouse. The aims of the typical “surgical divorce” client are to keep legal fees low, keep things simple, and to keep peace in the family. A “surgical divorce” is the most straightforward approach to accomplish a divorce.
The “surgical divorce” client may have negotiated the terms directly with his or her future ex. But my client may want a reality check as to the agreed-upon terms. Surprisingly there are factors in a divorce that might be missed by the divorcing partners, even though it is the married couple that has most information about the marriage and the their finances.
An example is rights to pensions that accrue during marriage and how to divide them in a divorce. Another example is the implication (or non-relevance) of whose name a particular asset is titled in. Part of my work as an attorney is to educate the client as to his or her rights, so that if any are waived, it is done knowingly and freely.
Divorce can also be viewed as a portal to a better life for the couple involved and for their children. A divorce is, well, a divorce, and there will be changes and dislocations in the family and financial structure. And some of them may be painful. However, a “surgical divorce” can benefit the children, fosters co-parenting, and helps amicable long-standing in-law relationships to continue.
Part of the benefit of divorce is that children don’t continue to view a dysfunctional relationship between their parents, This could give the children an unhealthy role model for adult relationships and marriage.
In a “surgical divorce” sometimes only one spouse retains an attorney. Both spouses want to keep things under their control as much as possible. They don’t want to be caught in a crossfire between their respective lawyers. Keeping the tone of the divorce under your control is important in having a peaceful divorce. They don’t want to end something that started with love in a disrespectful, undignified way. They understand that if there was “fault” in their marriage, it is presumably owned by both of them.
The “surgical divorce” client generally wants me to professionally write up all the papers needed for a divorce, so that when he or she goes to court to get the court’s approval on the divorce terms (a necessary step in most states) the papers and divorce agreement will be approved.
Even in the most simple and compatible of divorces, the divorcing spouses can’t hire a single lawyer to represent them. That’s because the spouses are theoretical adversaries in a divorce action. Sometimes during the course of the divorce, the theoretical becomes the practical, and there is an issue or two in which the couple’s views as to the outcome diverge, sometimes rather strongly. Because of this potential for conflict, the lawyer Rules of Professional Conduct prohibit a lawyer from representing the two spouses in a divorce.
An attorney representing one party in a “surgical divorce” may go to the court hearing with his or her client. This is often a good thing do to, because sometimes a judge might bring up something unexpected that needs to be dealt with on the spot for the divorce to go through. If the other party in the surgical divorce is not represented by counsel (or if that party used a “reviewing” attorney), the other party can come to the hearing alone (termed pro se in legalese). Judges tend to be very concerned about protecting the rights of unrepresented parties, which should give that person some comfort.
It is an irony that it is easier to get married than to get divorced. When you think about it, a marriage starts with nothing (but love). At the end, there are children, adult responsibilities, and (if you’re lucky) assets, debts (if you’re not), and mutual obligations that you had no idea you signed up for when you got married.
The divorce process is intended to take care of all these complex issues in a fair and equitable way. Having a “surgical divorce” in the right circumstance, can help you and your spouse build a sound divorce with workable provisions driven by your own needs and vision. It can be the last caring act of an ended marriage.
© Laurie Israel 2012.
on both prenuptial and postnuptial agreements. She works as a consultant and mediator
nationwide. She previously practiced for 35 years in the areas of tax law, divorce, collaborative
law, estate planning, probate of estates and trust administration, as well as mediation and, in
Massachusetts, providing counsel for couples entering into prenuptial agreements. Laurie is
one of the initial practitioners and developers of the field of marital mediation, the practice of
using mediation to help couples solve marital problems and improve their marriages. Laurie is a former board member of the Massachusetts Council on Family Mediation and the
Massachusetts Collaborative Law Council. Her writings include articles on divorce, mediation,
marital mediation, and prenuptial agreements. You can find her articles on www.ivkdlaw.com,
Huffington Post, and Mediate.com. She is the author of the book “The Generous Prenup: How
to Support Your Marriage and Avoid the Pitfalls,” available on Amazon. Laurie is frequently
called upon by attorneys and mediators to share her expertise, through giving both formal and
informal presentations, on the subject of prenuptial agreements all across the country. You can
contact Laurie at laurie@laurieisrael.com. Her website is www.laurieisrael.com.