Divorce – What the Lawyers Don’t Tell You

The statistics on divorce in South Africa are frightening. It appears that divorce in our sunny land is on the upswing along with the recession.

Determine what you already know

The first port of call for most would be divorcees is a good lawyer. What they tell you however, is based on what you tell them. In short, it’s not much good going to see a lawyer and spending all that money on hourly fees just to have them regurgitate what you already know.

You need to sit down and analyse your situation. Are you in agreement with your spouse about the divorce? Will he/she contest the action? Do you have property to split? Do you have children from the marriage?

If you answered yes to the first question you’re home dry, if not, well you need to look carefully at the situation before you appoint an attorney.

Agreement means low legal fees

If you and your current spouse are in total agreement that the divorce take place then you are part of the way. I say part because although you may agree you would both like the divorce you also need to agree on who raises the children and how the property and assets (if you have any) are to be divided before you enter the divorce court.

If you are not in agreement about all of those issues the court will not grant the divorce.

How to determine agreement

My divorce was drawn out for almost two years. Why? Because I didn’t sit down with my spouse and agree the terms for the divorce upfront. Ours was a heated marriage and conversing sanely was proving impossible. Our options included seeking counselling, retaining an attorney or seeking arbitration to settle terms for the divorce. I, wrongly, retained an attorney.

What I should have done was seek arbitration to settle terms. That would have meant that a marriage guidance counsellor or a lawyer would have arranged a neutral territory meeting and assisted us in drawing up an agreement regarding the children, the maintenance and the property and assets. Sensible!

The reality of the situation

What actually happened is that my retained attorney arranged a meeting with my husband’s attorney with both of us present too and proceeded to argue. In this manner they provoked us both into dispute; the meeting fell apart and needed to be rescheduled. My husband came to loathe my attorney and subsequently refused to meet. I became annoyed with the process and alarmed at the rate my costs escalated.

I was billed for every minute of every argument in my attorneys offices. Even those between my attorney and my husbands attorney when we were not present and had not requested said meeting. I was also billed for the times my enraged husband strode into my attorneys office and engaged in ranting at him.

A year and four months and R375 000 later I could ill afford, I fired my attorney.

What happened next?

I sat down and wrote to my husband and offered him everything, the children, the houses, the savings account and the engagement ring. He refused. After his refusal I engaged an empathic female lawyer at a much reduced rate and asked her to approach him directly with an offer.

Hiring a female lawyer was definitely the right approach. He warmed to her empathic nature and wasn’t threatened by her approach. A few days later he agreed to the following terms:

1. That no cause would be cited for the divorce

2. That he could be named as plaintiff

3. That he would have unlimited access to the children to suit his work schedule

4. That I would accept 35% of the assets and award him 65%.

5. That maintenance would be 50:50 for the children and no alimony would be requested.

An unfair settlement?

People close to me thought I was nuts. However, through the drama I had learnt that divorce is not about the assets or the money. It’s about the principle, the pride and the loss of face. If you really want an amicable divorce and a reasonably healthy friendship afterwards you need to remember that.

What was important to me was maintaining the relationship with my children’s father, being well off enough to start again and allowing him to retain his pride.

I achieved what I needed and now am happily remarried watching my two sons grow up with a wonderful new career ahead of me.

In conclusion

Before you even begin the process write down three of the most important things you wish to achieve by divorcing your spouse and work out how best to attain them and how to approach him/her about those items on your list.

Make your spouse a co-conspirator in the process instead of your enemy and whilst your settlement may not be all you dream, you will achieve an amicable divorce and easier settlement.