What’s a “Surgical” Divorce and How to Get One
“Surgical Divorce” is a term I’ve originated for a fairly simple divorce, where one party has engaged an attorney and the other is pro se. I’m asked this question a lot: “Why can’t you represent both of us?” It is considered a conflict of interest and therefore unethical for one attorney to be the attorney for both parties to the divorce. Attorneys are bound to represent the interests of their client. And as much as you might think there are no disputes between you and your spouse as you head toward divorce, one (or more) conflict may raise its ugly head. That’s why one lawyer can’t represent both of you. (An alternative below is to use an attorney functioning as a mediator, not as a lawyer.)
In a “surgical divorce,” the attorney for a party gets all the facts from the client and drafts a separation agreement and the other filings needed for the divorce. The aim of the separation agreement is to comport with the terms the court would likely approve under the applicable statutes and case law, which means it’s intended to be fair to both spouses.
If the other party is not represented, the attorney (as well as the spouse) can communicate directly with that other spouse and address questions and issues. If the other party is represented, then the attorney must deal with the opposing attorney (again, an ethical rule to be followed).
By working with an attorney, you may find legal or practical issues that you and your spouse did not address. You also may find that something you and your spouse thought was “fair” perhaps isn’t, in light of what you are learning about your mutual rights and obligations under the divorce laws of your state. You might find some better ways of doing things as a result of suggestions by your lawyer, who hopefully has a lot of experience in divorces. Your attorney can provide a helpful reality check for you (and, indirectly, your spouse) as you work through the process.
The court papers and separation agreement will be drafted professionally. The terms are set for the period of marital disengagement and also (very importantly) provide a roadmap for the future. If the other spouse has not already done so, he or she may (and often should) consult with an attorney before all the papers are signed. That attorney will provide helpful feedback, which should aid the process.
If there are any unresolved disagreements along the way, hopefully both spouses can resolve them readily now that you have been advised of what the rules of divorce are. Or if an issue proves intractable, you can seek resolution of that particular issue through mediation or marital counseling. Through all this, you’re on the path to a civil divorce (in both senses), and will probably easily come to a settlement on all of the issues.
Sometimes, in a “surgical” divorce, the spouses do not bring the attorneys to court for the hearing. Your attorney will let you know whether there are special issues that may make it prudent to bring one (or both) of the attorneys to the hearing on the divorce, which is required in most states. Sometimes having an attorney (or both attorneys) at the hearing can help an uneasy judge feel more inclined to approve an unusual argument or provision in a separation agreement.
If you have decided that your attorney will not be at the divorce hearing, your attorney can prepare you for the judge’s questioning and appropriate responses. If you run into problems, you can ask for a short “continuance” and telephone your attorney, who can be on call during the hearing date to assist if needed.
You would be surprised at how many divorce cases fall into the category of “surgical” divorces: two nice people, who, for whatever reasons, can’t stay married. They want to move forward fairly and expeditiously toward divorce. The process is client-driven. It reduces the escalation of acrimony during the divorce. As you can imagine, this type of divorce is generally one of the least expensive of the professionally prepared divorces. As a professionally prepared divorce, it is drafted carefully and soundly, with practical and workable provisions. The spouses benefit from the experience of divorce counsel. This all bodes well for the client and the other spouse as they transition into post-divorce life.