In an article in the Economist it was reported that all around the world, lawyers generate more hostility than the members of any other profession—with the possible exception of journalism. South African divorce law is founded on the adversarial system where two lawyers represent their clients’ positions before a judge or magistrate, in contested divorce cases, who then try to determine the truth of the case.
Some authors trace the process to the medieval age-old mode of trial by combat, a system that forces the parties into a mind-set of winners and losers. Let’s face it, we live in an adversarial society, one that approves the idea that every time there is a conflict sides must be taken. That means that one side ending up on top, the other side ending up on the bottom, a looser and a winner. The adversarial system is a poor way to solve divorce. This is especially true where children are involved, the adversarial system is sluggish, and many people are refused justice for too long simply because the system tends to lengthen the trial process. “Justice delayed is justice denied”. This system is additionally expensive and requires litigants to have legal representation. The high cost of legal advice and legal representation impede those who cannot afford it. This may suggest that vital evidence which needs to be drawn out by questioning may not be presented in the trial and as such, the truth may not always surface.
The cost of divorce can differ significantly starting almost free to nearly all a couple’s assets. On one end of the spectrum, spouses can draft their own divorce settlement agreement, have a lawyer review it, and spend only the essential court filing and court appearance fees. At the other end, animosity can get the better of otherwise reasonable people, and when they become embroiled in drawn-out and costly litigation, they end up wasting many thousands of rands on attorney's fees and costs.
Someone who is having a contested divorce case is advised to employ experienced attorneys. Some of the principal issues that affect divorce cases entail childcare and contact, maintenance and the division of property.
Separating Your Emotions from Your Divorce Case
The costliest blunder some couples make is utilizing the divorce case as a way to show which partner was “the better spouse” during the course of the marriage. If you're arguing over property division or child contact out of anger at your spouse, instead than thinking about what's fair or best for the children, you will rapidly run up bills from senseless litigation.
How Does Acrimony Increase the Cost of a Divorce?
Animosity and pointless litigation can bring many additional costs to a divorce. Divorce cost is also determined by the wealth of the couple; when wealthier individuals can't agree on maintenance or property division, they tend to employ more expensive lawyers and are also more probably to need financial experts such as forensic accountants, psychologists, and property appraisers. Acrimonious custody disputes and battles over the division of assets can also enhance divorce costs.
Custody battles can quickly become the most expensive part of your divorce. For parents who spend nearly every night at home with his or her children, the possibility of only seeing their children every other weekend can be dreadful. Although many couples agree that one parent ought to be the primary caretaker of the children, other people fight tooth and nail to be the primary parent.
Many costs come from dealing with a care and contact dispute as a contest to optimize your custodial time and limit your spouse’s. To decrease unnecessary costs in a custody battle, parents should rather start from the standpoint that the child is best off having adequate time with each parent, and try to truly find a contact schedule that promotes a positive relationship between each child and each parent rather than employing forensic child experts to recommend at great cost what the contact should be.
Division of Property and Divorce Expenses
Divorcing couples must decide how to divide their asset and debts, an exceedingly sensitive topic for spouses who have probably argued over money before to divorcing. Countless unnecessary costs come from spouses’ unrealistic expectations regarding what their financial life will look like following divorce. With the exclusion of very rich couples, most spouses must expect that moving from one household to two households will fundamentally mean some decrease in their standard of living.
When making use of attorneys, every day that couples fight over money means that there will be less money to divide at the end of the divorce process. If you're anticipating an extremely ill-proportioned division of assets in your favour, you're likely to be dissatisfied, unless of course you have a really compelling legal argument for an unequal split of real estate and personal property. If you are proceeding with unrealistic expectations, you'll likely lengthen your litigation and run up the cost of your divorce, just to find at the end of the day, the division will be something near to 50/50 (if you married in community property).
Trial and Divorce Expenses
Whether your divorce case ultimately settles or goes to trial can make a tremendous difference in your ultimate legal costs. Between the legal preparation necessary and the trial, itself, heading out to trial can definitely double ones litigation costs. One must only go to trial after having attempted to negotiate a settlement agreement in good faith and having attended mediation.
Many divorcing spouses aren’t able to negotiate a complete divorce settlement on their own, and attorneys are usually necessary. Divorce attorneys are indispensable when one spouse is furious, dishonest, revengeful, or even just more financially intelligent than the other.
Exceptional communication skills
Your family law attorney must be an eloquent, confident speaker. A good lawyer should be both articulate and a good listener. This skill is indispensable for arguing your case.
A good researcher
Preparation is essential; a good lawyer performs their research ahead of time to form a good strategy. They must be able to absorb and understand a large amount of information and turn it into something practical for your case. He or she should have exceptional attention to detail and must be thorough, accurate and meticulous to their work.
Experience and knowledge are crucial. Your lawyer should know all aspects of family law. They also need to be knowledgeable about your needs, goals and requirements.
In order to win a case, a family lawyer must be empathetic. Select an attorney that has a sense of belonging to family. A good lawyer needs to not only know what your needs and goals are, they have to actually comprehend where you stand and what your position is.
A good family law lawyer should be sincere with you about the strengths and weaknesses of your family law case. Lawyers need to show quality ethics and a high moral standard.
Cares about you
A good family lawyer cares about his or her clients; good lawyers are concerned about their client’s well-being. They should be supporting and will show genuine care throughout the process.
Understands the dynamics of having children
Many family law attorneys do not understand the dynamics of having children, in fact many of them have no practical experience in raising children. Family law is not all about law, but about a much broader scheme of things. Someone once said that family law is 50% law and 50% about inter-personal relationships and psychology. Make sure that your family lawyer understands these dynamics, since a mere clinical approach is not always conducive in solving practical problems.
For more information, contact:
Family Department - Maurice Phillips Wisenberg
Tel: 021 419 7115
Cases and Articles on Divorce Law and Family Law in the SA courts.
Legal news and case law in the South African courts, compiled by Family Law attorney, Bertus Preller.
Bertus Preller is a Family Law and Divorce Law Attorney in Cape Town.