BREAKING DOWN A MARRIAGE: HOW CAN IT BE DONE?
This is the first part of a series on the different ways divorce can be settled. This article was first published by OTP Law Corporation.
Divorce is a harrowing process. Beyond the emotional trauma, there are typically a host of issues and complications, especially if there are children or substantial assets involved. These issues, big or small, need to be addressed before the divorce can be finalised.
Sometimes, parties are able to come to an agreement on their own and thus result in an uncontested divorce. However, divorce will often be contested as spouses will usually not be able to totally agree on all aspects, especially for ancillary matters. In many cases, parties turn to litigation to resolve these issues, battling in court for every inch they can squeeze out of the other with rarely any clear winner at the end. This begs the question – is there a better way to resolve these issues?
There are four main ways in which divorce matters can be resolved: being a litigant-in-person, mediation, collaborative practice, and litigation. Each has their own strengths and weaknesses, and choosing one depends on the needs and interests of the party in question. Ultimately, this article hopes to show that there may be a better path towards a more friendly and peaceful divorce than litigation, which perhaps should be a last resort.
The first method parties can opt for is to handle their case by themselves, i.e. being a LIP. This method entails either party, or both, choosing not to engage lawyers to act on his/her behalf in the matter and instead, opting to complete the divorce process himself/herself. They would then be responsible for everything normally be handled by a divorce lawyer – drafting and filing paperwork (including pleadings, motions, affidavits, and court forms); communicating with the other party or his/her lawyer; doing the relevant legal research; and attending and presenting arguments at hearings… That’s a lot of work.Clearly, unless the LIP is already familiar with the court process and the law, this requires a great deal of preparation and research on his/her part on top of everything else that’s going on. Between complex legal jargon, legal processes, and financial implications (amongst many other things), not everyone has the time and ability to seek out the necessary information, especially in more complex cases. Being a LIP is no walk in the park, and is a solution perhaps not suited to most cases.
On the bright side, being a LIP cuts out a bulk of the costs of that come with litigation. With legal fees typically amounting to thousands of dollars, representing yourself will cut down on money spent finalising the divorce, leaving more in the pocket to settle other issues. Further, LIPs have full control over the legal arguments, strategies, and communication. This gives them the chance to make decisions independently.
Conversely, there are two main downsides to being a LIP. Firstly, acting for yourself means facing the legal and emotional toil yourself. This can be overwhelming, due to the stressful nature of appearing in court, the emotionally-charged nature of divorce, and frustration during hearings. There is also a wide array of issues to manage – from drafting to research to meeting court deadlines. Unless parties are familiar with the processes, it is likely to be an overwhelming and time-consuming endeavour to find and internalise all the information.
Second, while a LIP can do research and follow the guides on the Family Justice Courts website (link: https://www.familyjusticecourts.gov.sg/Common/Pages/divorce.aspx) to understand what they need to do, they run the risk of not putting in enough useful information to build their case. This is of course, not their fault – after all, LIPs are not necessarily familiar with the relevant case law and documents, as well as what kind of evidence would be helpful. LIPs may also not be fully familiar with the implications of the decisions he/she makes, leading to the risk of making irreversible mistakes which have severe consequences in the long run. This also leads to a general concern by opposing counsel over whether decisions and agreements are made knowingly and voluntarily, especially with regard to bigger issues such as children, retirement benefits, or substantial assets.
Clearly, this method is extremely taxing for parties as there are many things to take into consideration. In this light, this method is perhaps best for two specific cases: firstly, in uncontested divorce, parties with no children, little assets and debts to divide, and comparable income; or secondly, in contested divorce, where disputes are not too substantial, and parties are already familiar with the court processes and laws, and are able to keep a level head during the proceedings.
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