It is commonly accepted that divorce constitutes one of life's major stresses, ranking in the hierarchy of life's stresses, just below the stress of bereavement.
The emotional context of a divorce is frequently built on feelings of loss and/or betrayal, humiliation, financial uncertainty, guilt, anxiety regarding the pain inflicted on the children, the fear of losing one's access to one's children and/or loss of custody of such children.
The empowerment process of a divorcing spouse involves the accessing of a range of resources including, inter alia, money resources, psychological support systems, the mobilising of family support, and of course, the appropriate legal resources. This article will be limited to the role of the divorce attorney.
Becoming empowered in the divorce context will often involve the choice of an experienced divorce attorney who has a proper grasp of the emotional forces at work. All too often, the process of bringing a divorce to a sensible and proper resolution is bedeviled by emotional factors, which, if not properly managed, can then be acted out in sordid and costly divorce wars.
All too often, unfortunately, attorneys unconsciously get embroiled in over-identifying with their clients' blind vendettas, to the extent that it is not uncommon for opposing divorce attorneys to find themselves bickering with each other at the cost of their respective clients.
A divorcing client whose attorney has the necessary experience and insight into the psychological circumstances of the divorce in question, will be far more capable in assisting the client to "see the road ahead" and apply the appropriate balanced wisdom and judgement to appropriately structure the divorcing process in the direction towards a sensible resolution.
An attorney is not assisting his and/or her client to be properly empowered if such attorney allows the blind rages which form part and parcel of the emotional landscape of divorce to remain unchecked and unmanaged.
There are a number of areas wherein the attorney should play a role in assisting a divorce client to be properly empowered. These are:
(a) Providing the client with accurate legal information regarding his and/or her legal rights.
(b) Informing of the client regarding the different procedural matters that are available to the client. These range from:
|(i)||the very simple divorces, where the parties themselves have more or less agreed on the terms of the divorce.|
|(ii)||divorces where a certain amount of correspondence is exchanged in the form of proposals and counter-proposals culminating in a round-table conference between the parties and their respective legal representatives, whereat a settlement is reached.|
|(iii)||divorces wherein a certain amount of interim litigation takes place, whether such litigation be in the form of interdicts relating to family violence, interim applications for maintenance and/or contribution to costs and/or child custody.
Very often, once the proper interim legal relief has been obtained and the Court has ruled on a number of interim issues between the parties, including the making available of certain financial information, divorces may then be settled at a pre-trial conference and/or in appropriate cases, directly by the parties themselves through the services of a mediator.
|(iv)||custody and/or access disputes are now, as a matter of standard practice, referred to the family advocate. The family advocate is appointed in terms of "The Mediation in Certain Divorce Matters Act No 24 of 1987" and his and/or her function is to institute enquiries to enable him and/or her to furnish the Court at the trial of any custody or access case with a report and recommendations on any matter concerning the welfare of each minor dependent child of the marriage concerned. The family advocate also has the power to appear at the trial of any divorce action or custody and/or access application to lead evidence relevant to the case. The aforegoing is over and above general intention expressed in the act of having the family advocate facilitate agreements being reached between the parties relating to the custody and access rights of their children.|
A competent and caring divorce attorney will attend with his and/or her clients at the meetings with the family advocate and the opposing attorney and ensure that the investigations and/or negotiations are conducted in a proper manner with suitable experts being properly briefed.
A number of divorce attorneys are trained mediators, registered with the South African Association of Mediators. In the mediation process, the parties themselves negotiate the divorce and it is the job of the mediator to facilitate the process. With the right couple, the right mental attitude and the right competence available in the mediator, literally tens of thousands of rands could be saved which otherwise would be incurred in a litigated divorce. Post-divorce maintenance disputes are also very often resolved in mediation.
In some cases, divorce and/or custody and/or access litigation cannot be avoided. A competent divorce attorney has to be exceptionally skilled in High Court litigation. Ultimately, it is a very important function of the divorce attorney to assist the client in choosing, which, in the overall context of their divorce, is the most appropriate of the above processes to be followed.
Divorce is a complex matter which in addition to the aforementioned issues, requires a considerable degree of expertise on the part of the attorney in fulfilling the following additional functions. The attorney must structure an appropriate and affordable service within the reach of the client. It is part of the job of an experienced divorce attorney to help the client properly access the financial resources.
Competent divorce attorneys must also assist clients in putting into place proper support systems which might include the mobilising of family and/or friends, the "bringing on board" of a suitable therapist and counsellor to face the process. A client must be emotionally prepared for the rigours of tough divorce negotiating and/or litigation.
In conclusion, in order to be properly empowered in the divorce context, you need an attorney who is experienced, who adopts a responsible and caring approach with respect to the best interests of the children, who understands the emotional forces at work and the financial constraints of the parties.
Such attorney must ensure that there is a proper balance of power in the negotiating process and that the divorce negotiations take on a format appropriate to the requirements of the case. A good divorce attorney must also be an exceptionally "skilled negotiator". All too often, attorneys find themselves unable to deliver on their promises to their clients. The ability to do so in the divorce context will depend largely on the wisdom and experience of the attorney in properly assessing the :ins and outs" of the case at a very early stage and advising appropriately.