What is a “Surgical” Divorce, and How to Get One

December 6, 2011 by  
Filed under Divorce, Featured

Maybe you and your spouse want to get a divorce and want to do it in the simplest way possible.  Your situation is fairly straightforward.  You and your spouse have already figured out the basic terms.  (You’re still fairly friendly with each other and talking.) You both want to keep peace in the family and get to a fair result.  You both want to keep fees low and avoid complexity.  You both just want to get divorced.  Perhaps you fit the profile for a “Surgical” Divorce.

What is a “Surgical” Divorce and how does it get started? A “Surgical” Divorce is generally the most cost-effective, simple divorce that is professionally done.  It is generally started by one of the spouses retaining a lawyer.  You want simplicity, but you don’t want to go pro se (i.e., without the benefit of legal advice).  But you both really want to keep the divorce under your control.

Can one lawyer serve both of you as attorney? The simple answer is “no.” Even though you might both want to hire one lawyer, you can’t.  Because you are two theoretical adversaries in a divorce action, you cannot have one lawyer representing both sides of the court action.  And, as much as you may think there are no disputes between you or remaining issues to address as you work towards divorce, one (or two) may raise its ugly head.  So to begin the process, one of you should hire a lawyer.

What the lawyer does. Let’s say you’re the one that hires a lawyer.  You’ll work with the lawyer to understand how you and your spouse’s proposed plan corresponds with the laws in your jurisdiction and the facts of your marriage.  During this process, you’ll discuss with your spouse any changes in the terms suggested by your lawyer and the reasons for the changes.

When you start working with the attorney, you may find legal or practical issues that you did not address.  You also may find that something you and your spouse thought was “fair” perhaps isn’t, in light of what you are learning about your mutual rights and obligations in the divorce from your attorney.  You might find some better ways of doing things as a result of suggestions by the lawyer, who has lots of experience in divorces.  And, the attorney will provide a helpful reality check for you (and indirectly, your spouse) as you work through the process.

Drafting the court papers professionally. Then your lawyer drafts all the papers to your satisfaction.  The most important and extensive of these is the Separation Agreement (sometimes called a Divorce Agreement), which sets out the terms of your divorce.  These terms are for the period of marital disengagement and also (very importantly) provide a roadmap for the future.

Your spouse’s attorney. At some point, your spouse may consult with an attorney on his/her behalf.  That attorney will provide helpful feedback, which should aid the process.  If there are any unresolved disagreements along the way, hopefully you and your spouse can resolve them readily, now that you have been advised of what the rules of divorce are.  Or if an issue proves intractable, you can seek resolution of that issue through mediation or marital counseling.  Through this, you remain on good terms with your soon-to-be former spouse and will probably come easily to settlements on all of the issues.

What a strong divorce is. The “Surgical” divorce is a strong divorce.  It complies with all the rules of law of the jurisdiction of your divorce, because it has been done professionally.  If the court needs to approve it, it will almost always gain the court’s approval, because the drafting attorney (and the reviewing attorney) have made it so.  It has been done professionally, so technical issues (such as the mechanics of a division of retirement accounts) have been addressed correctly.

Do the attorneys need to go to the divorce hearing? Sometimes, in a “Surgical” divorce, the spouses do not bring the attorneys  to court for the hearing.  Your attorney will let you know whether there are special issues that may make it prudent to bring one (or both) of the attorneys to the hearing.  If you have decided that your attorney will not be at the divorce hearing, your attorney can prepare you for all the questions the judge will ask, and what kind of answers are expected.  If you run into problems, you can ask for a short “continuance” and telephone your attorney who can be on call during the hearing date and time to assist if needed.

Conclusion: You would be surprised at how many divorce cases fall into the category of “Surgical” divorces:  two nice people, who, for whatever reasons, can’t stay married.  They want to move forward fairly and expeditiously towards divorce.  The process is client-driven.  It reduces the escalation of acrimony during the divorce.

As you can imagine, this type of divorce is generally the least expensive of the professionally prepared divorces.  As a professionally prepared divorce, it is drafted carefully and soundly, with practical and workable provisions.  The spouses benefit from the experience of divorce counsel.  This all bodes well for the client and his or her soon-to-be former spouse as they transition into post-divorce life.

© Laurie Israel 2011.

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