Legal advice is crucial when discussing divorce

The Examiner

Among the calls I get that generally lead to concern are from people – sometimes I know them and sometimes I don’t – that say “my spouse and I have decided to get a divorce and we have already sat down together and agreed on everything.”

Ken Garten

The reason for concern is that usually when I hear the details of what they’ve agreed to without any guidance or advice from counsel, I have one of several reactions.

Sometimes my response is: “Wow, that’s a very favorable result for you.” I tell them that we can move forward with that, but if your spouse seeks advice from counsel, any competent attorney would advise them that they shouldn’t let such an inequitable result be had, and verbal agreements made at the kitchen table in a dissolution of marriage case by lay persons without the advice of counsel are not binding and enforceable.

Sometimes, my response is: “That’s a terrible outcome for you, and no court in this area would do that to you.”

And while you’re not bound to such an agreement, and have the legal right to renege, it usually becomes more difficult to negotiate a settlement that is fair after your spouse thinks you have already made a deal.

Another common response I have to a pronouncement that the parties already have a deal is to identify a half dozen or more issues – sometimes important issues – that the parties haven’t even identified, considered or agreed to, that make any such claimed agreement lacking in important details.

Sometimes after parties contemplating divorce obtain good and detailed professional advice about what they can expect, they change their minds and decide they don’t want to go through with it after all. That is certainly fine too.

My point is: Don’t fly into the process blind.

In most dissolution-of-marriage cases, a lot of subtle strategy goes into working out a resolution, and the very first thing anybody seriously contemplating a dissolution of marriage should do is seek detailed advice from good and competent counsel before you discuss resolution of the issues with your spouse.

Obtaining advice from a lawyer is cloaked with the secrecy protections of the attorney-client privilege even if you don’t hire that lawyer to represent you, and the only way I think any party who sits down with their spouse to talk about divorce issues should proceed is armed with good advice and a clear understanding of the issues that are at stake and the way they should be resolved.

And, if you don’t have the stomach or desire to discuss divorce with your spouse, then that is fine too. You can let your lawyer do the talking for you, and just avoid the topic directly.

For the timid, scared or weak of heart, there is nothing inherently wrong, in my opinion, with notifying your spouse of such intentions by simply proceeding to have them served with the suit papers after you file. It happens all the time.

But if you want to be proactive and discuss resolving the case directly with your spouse, get legal advice, and develop a game plan with your attorney in advance of broaching the issues with your spouse.

Ken Garten is a Blue Springs attorney. Email him at krgarten@yahoo.com.