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What is a "Surgical Divorce" and How to Get One?

By Laurie Israel, Esq.

Many of the people who come to see me about getting a divorce have minimal disputes with their soon-to-be former spouse. They may have worked out most (or even all) issues with their spouse. The aims of the typical "surgical divorce" client are to keep legal fees low, keep things simple, and to keep peace in the family. A "surgical divorce" is the simplest and most compatible approach to accomplish a divorce. It is actually quite frequent among my client base.

The "surgical divorce" client may have negotiated the terms directly with his or her future ex. But my client may want a reality check as to the agreed-upon terms. Surprisingly there are factors in a divorce that might be missed by the divorcing partners, even though it is the married couple that has most information about the marriage and the their finances.

An example is rights to pensions that accrue during marriage and how to divide them in a divorce. Another example is the implication (or non-relevance) of whose name a particular asset is titled in. Part of my work as an attorney is to educate the client as to his or her rights, so that if any are waived, it is done knowingly and freely.

Divorce can also be viewed as a portal to a better life for the couple involved and for their children. A divorce is, well, a divorce, and there will be changes and dislocations in the family and financial structure. And some of them may be painful. However, a "surgical divorce" can benefit the children, fosters co-parenting, and helps amicable long-standing in-law relationships to continue.

Part of the benefit of divorce is that children don't continue to view a dysfunctional relationship between their parents, This could give the children an unhealthy role model for adult relationships and marriage.

In a "surgical divorce" sometimes only one spouse retains an attorney. Both spouses want to keep things under their control as much as possible, and don't want to be caught in a crossfire between their respective lawyers. Keeping the tone of the divorce under your control is important for having a peaceful divorce. They don't want to end something that started with love in a disrespectful, undignified way. They understand that if there was "fault" in their marriage, it is probably owned by both of them.

The "surgical divorce" client generally wants me to professionally write up all the papers needed for a divorce, so that when he or she goes to court to get the court's approval on the divorce terms (a necessary step in most states) the papers and divorce agreement will be approved.

Even in the most simple and compatible of divorces, the divorcing spouses can't hire a single lawyer to represent them. That's because the spouses are theoretical adversaries in the action. Sometimes during the course of the divorce, the theoretical becomes the practical, and there is an issue or two in which the couple's views as to the outcome diverge, sometimes rather strongly. Because of this potential for conflict, the lawyer Rules of Professional Conduct prohibit a lawyer from representing the two spouses in a divorce.

An attorney representing one party in a "surgical divorce" may go to the court hearing with his or her client. This is often a good thing do to, because sometimes a judge might bring up something unexpected that needs to be dealt with on the spot for the divorce to go through. If the other party in the surgical divorce is not represented by counsel (or if that party used a “reviewing” attorney), the other party can come to the hearing alone (termed pro se in legalese). Judges tend to be very concerned about protecting the rights of unrepresented parties, which should give that person some comfort.

It is an irony that it is easier to get married than to get divorced. When you think about it, a marriage starts with nothing (but love). At the end, there are children, adult responsibilities, and (if you're lucky) assets, debts (if you're not), and mutual obligations that you had no idea you signed up for when you got married.

The divorce process is intended to take care of all these complex issues in a fair and equitable way. Having a "surgical divorce" in the right circumstance, can help you and your spouse build a sound divorce with workable provisions driven by your own needs and vision. It can be the last loving act of an ended marriage.

Laurie Israel is an A-V rated lawyer practicing in Brookline, Massachusetts. Laurie helps clients resolve their disputes with a high level of dignity, integrity and creativity. She is a former board member of the Massachusetts Council on Family Mediation and the Massachusetts Collaborative Law Council. Laurie currently writes for The Huffington Post as a blogger on divorce-related topics, and is managing partner of Israel, Van Kooy & Days, LLC.

She can be contacted by phone at (617)277-3774 or
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