Yes, there are several things that virtually every divorcing couple can and should do to make their lives and the divorce no more difficult and painful than necessary. I will describe two such things below.
Rarely is the law hard to apply correctly in the majority of divorces, when the relevant facts are known and when you can find an expert on the subject who can analyze the facts and apply the law correctly. This is why each spouse must get a good (a good, not just any) lawyer (not to fight, but to avoid a needlessly acrimonious and costly fight) to represent him/her.
If each spouse does not retain the services of an attorney who is a knowledgeable, honest, experienced, and decent person, then each spouse is taking unnecessary risks. What such an attorney can do for his/her client by way of educating the client, advising the client, and guiding the client to the divorce process is invaluable. Not all attorneys are created equal, and so finding the best attorney one can afford does take time and effort. It is some of the best time and effort one can invest.
But divorce lawyers make a lot of money when divorcing spouses fight and litigate. Far too many divorce attorneys encourage spouses to litigate needlessly, so that the attorney or attorneys profit from those disputations. If your father or mother hires an attorney believing that attorney will give him or her frank advice, odds are that each parent’s attorney will tell each parent what that person wants to hear about how well he or she will do in divorce if only that parent places his/her trust in a great deal of his/her money in the attorney’s hands.
Some divorces involve such close calls on what the right and fair thing to do is that it is worthwhile to litigate in good faith. Such litigating helps clearly identify and narrow the issues only to those that are material and relevant. Such litigating helps develop, consider, and eliminate all but the best rationales forming the basis of the final orders and judgments. As I stated at the beginning, however, most divorce cases are not that unique or complex that to reasonable and fair-minded spouses cannot make informed decisions as to what a fair and equitable settlement agreement should be in their divorce.
Consequently, one of the best things that your parents can do–together and separately–is find and consult with recently retired judges and attorneys (other than the attorney who represents each spouse) who know divorce law and its application well. The fact that they are retired should greatly increase your parents’ odds of getting honest and impartial opinions and advice on how to handle their divorce, so that they don’t waste time, effort, and money litigating needlessly.
Consulting with a retired judge and/or attorney (even when one already has a lawyer representing you in the divorce action) can also provide one with a valuable second opinion in addition to that of one’s attorney. This can help one assess just how good or bad one’s attorney is.
That stated, not all retired judges and attorneys are created equal. Just because one was a former judge or practiced divorce law for 40 years before retiring does not make one spontaneously expert and wise on the subject of divorce law. There are plenty of judges who got to the bench through their political connections, not their jurisprudential expertise. There are plenty of retired divorce attorneys whose careers were characterized by consistent mediocrity, even incompetence, for decades. Conduct your research carefully before you choose those retired judges and attorneys with whom you will consult.
I recommend that your mother and father—with the full advance knowledge and consent of their respective attorneys—meet with a recently retired judge and a recently retired divorce attorney or two who has/have a reputation for being as wise and fair as they are educated and experienced on the subject of divorce law. If either parent feels more comfortable meeting with the retired judge(s)/attorney(s) in the company of his/her own attorney too, there should be no objections.
Your mother and father must be willing to speak transparently and candidly with these retired judges and attorneys when asking questions and in answering the questions the judges and attorneys pose to them. If your parents conceal the facts from the judges and/or lie to the judges, the answers they will get to their questions and the advice dispensed will be tainted by those lies of omission and commission.
When your parents understand what facts matter and don’t matter in a divorce action, when they understand what laws apply and how they apply, then unless one or both of your parents is a crook, they should be able to reach agreement on what a fair settlement of their divorce action is amicably, quickly, inexpensively, and with minimal regrets and emotional pain.
Once your parents both feel that they understand what all of the issues in their divorce should be and are, once they understand what the law is and how it applies to each issue, and when your parents feel secure in their knowledge so that they can reach agreement (and agreement often means compromise; not every issue can be resolved in a win-win manner), they should write down, in their own words, notes on what they both feel they are willing to do by way of settlement and how that settlement should look. These notes are not—and should not be treated as—a binding settlement agreement; they are to help in preparing a formal, written, signed agreement. Your parents should then each give a copy of these notes to their respective attorneys and instruct them to work together to draft a legally correct and binding settlement agreement and the decree of divorce based upon that agreement.
Note: what I described above is not mediation. Mediation can be a very helpful and useful tool in resolving divorce disputes, but that is not always the case. Experienced and wise retired judges and divorce attorneys can make excellent mediators, but that is not always the case either. Mediation may be helpful, even necessary, after spouses have become informed about divorce law and how it applies in their situation, yet still find themselves deadlocked. If the spouses do as I have described above, deal with each other in good faith, consult fully and transparently with a retired judge and/or attorney or two, understand the issues and how the law applies to them, then deadlocks should be rare.
Utah Family Law, LC | divorceutah.com | 801-466-9277