The Hindu Succession (Amendment) Act, 2005 A Misnomer 

Though the Act is Hindu Succession Amendment Act, it appears to be a misnomer as there is nothing new qua daughters’ rights of succession. Equal rights by way of succession were already given to daughters as that of sons by Section 8 of Hindu Succession Act, 1956 r/w The Schedule. 

Section 8 : General rules of succession in the case of males – 

The property of a male Hindu dying intestate shall devolve according to the provisions of this Chapter – 

(a) Firstly, upon the heirs, being the relatives specified in class I of the Schedule; 

THE SCHEDULE 

CLASS – I 

Son; daughter; widow; mother; son of a pre-deceased son; daughter of a pre-deceased son; son of a pre-deceased daughter; daughter of a pre-deceased daughter; widow of a pre-deceased son; son of a pre-deceased son of a pre- deceased son; daughter of a predeceased son of a pre- deceased son; widow of a predeceased son of a pre- deceased son. 

CLASS – II 

1. Father. 
2. (1) Son’s daughter’s son, (2) son’s daughter’s daughter, (3) brother, (4) sister.
3. (1) Daughter’s son’s son, (2) daughter’s son’s daughter, (3) daughter’s daughter’s son, (4) daughter’s daughter’s daughter.

Only addition is conferring succession rights on great grandson and great granddaughter through daughter/female. However, while amending the Schedule only four such descendants are included in Class-I, who are in entry No.II S.No.2 and entry No.III S.No.2 to 4 of Class-II, whereas there are six such descendants, two are in entry No.II and four are in entry No.III of Class-II. Those are at S.No.1 entry No.II and S.No.1 entry No.III of Class-II are not mentioned in amended Class-I of Schedule. 

Chance of getting such right is very very less i.e. remote. However, before amendment great grandson/daughter through son i.e. only through male descendants were included in Class-I of the Schedule. Now, by way of amendment, great grandson / great granddaughter even through female descendants are included in the Schedule so as to grant them right of succession. 

Birth Rights in The Hindu Succession (Amendment) Act, 2005

Major amendment is qua substitution of new Section 6 for Section 6 of Principal Act of 1956. New Section 6 (1) is qua conferring birth right on the daughter of a coparcener. Hence, no right of succession is conferred by that sub-section 1 of Section 6. 

Sub-section 2 of Section 6 is qua nature of the property acquired by the said daughter under sub-section 1. Hence, not concerned with succession.

Sub-section 3 of Section 6 is in respect of succession.

Sub-section 3 reads as “Where a Hindu dies after the commencement of the Hindu Succession (Amendment) Act, 2005, his interest in the property of a Joint Hindu family governed by the Mitakshara law, shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship, and the coparcenary property shall be deemed to have been divided as if a partition had taken place and –

(a) the daughter is allotted the same share as is allotted to a son;

(b) the share of the pre-deceased son or a pre-deceased daughter, as they would have got had they been alive at the time of partition, shall be allotted to the surviving child of such pre-deceased son or of such pre-deceased daughter; and

(c) the share of the pre-deceased child of a pre-deceased son or of a pre-deceased daughter, as such child would have got had he or she been alive at the time of the partition, shall be allotted to the child of such pre-deceased child of the pre-deceased son or a pre-deceased daughter, as the case may be.

Explanation :- For the purposes of this sub-section, the interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition  of the property had taken place immediately before his death, irrespective of whether he was entitled to claim partition or not.

However, what is provided by sub-section 3(a) & (b) was already provided by proviso to Section 6 of Principal Act and by Section 8 & Schedule of Principal Act. Hence, nothing new is in clause (a) & (b) of sub-section 3 of Section 6 of the Act of 2005.

Clause (c) of sub-section 3 of Section 6 provides right of succession to great grandson / great granddaughter through female descendants. This clause only provides new right of succession. Schedule is accordingly amended, however, two categories of descendants who are coming under Clause (c) sub- section 3 of Section 6 are not included in Class-I of amended Schedule.

• Important right conferred by Amendment Act on the daughter of a coparcener is the birth right and not right by succession.

It is germane to note that the coparcenary birth right is conferred on the daughter of a coparcener and not on all the daughters.  The words “the daughter of a coparcener” are very important for interpreting the provision.  Wording “the daughter of a coparcener” is used in the provision. Only the daughter or a daughter is not used in the provision. It means all daughters shall not by birth become coparceners, but only the daughter of a coparcener shall by birth become coparcener. 

Now the question remains who is “the daughter of a coparcener” under the Hindu Succession Act?

For that it is to be seen who is a coparcener?  Son, grandson and great grandson of a male hindu form the coparcenary and they all inclusive of said male hindu are coparceners. 5th generation is not part of coparcenary and the person of 5th generation is not a coparcener. When the person of 1st generation dies then he ceases to be a coparcener and person of 5th generation will be included in the coparcenary and he will be coparcener. It means as soon as person dies he ceases to be a coparcener.

The wording used in the Amendment Act is the daughter of a coparcener. It means what is contemplated in the provision is the daughter of a person who is coparcener. Unless a person is alive he cannot be a coparcener. On his death he ceases to be a coparcener. Hence, the daughter of a person, who ceased to be a coparcener, is not the daughter of a coparcener. Such daughter is the daughter of the deceased coparcener. Thus, it is very clear that the daughter whose father is alive on the date of commencement of the Amendment Act, 2005 is the daughter as contemplated in the provision. The daughter whose father is not alive on the commencement of the Amendment Act, 2005 is not the daughter of a coparcener as her father ceased to be a coparcener on his death.

Thus, only the daughter whose father is alive on the date of commencement of the Amendment Act, 2005 shall by birth become a coparcener. Hence, the only daughter whose father is alive on the date of commencement of the Amendment Act, 2005, acquires birth right as coparcener. 

The question, Whether the Amendment Act is retrospective or prospective in operation? is often raised. In view of the wordings of the provision, there is no question of retrospective or prospective operation. Operation of the Amendment Act, 2005 particularly amended Section 6 depends upon the facts of the case.

On commencement of the Amendment Act, 2005 operation of the Amendment Act, 2005 starts. It will apply to some cases which are covered by provision of Section 6 of The Amendment Act, 2005 and not to other cases. It can be explained properly by way of illustrations.

Illustration :-

1. The father of the girl ‘X’ was alive on the commencement of the Amendment Act, 2005. Hence, ‘X’ being the daughter of a coparcener acquires status of coparcener on the commencement date of the Act, hence acquires birth right in ancestral / coparcenary property on that day.
2. The father of the girl ‘Y’ was not alive on the commencement of the Amendment Act, 2005. Hence, ‘Y’ being “not the daughter of coparcener’ (whose father ceases to be a coparcener due to death prior to commencement of the Amendment Act, 2005) does not and cannot acquire status of coparcener, hence, does not and cannot acquire birth right in ancestral / coparcenary property. 

Thus, the Amendment Act, 2005 is operative since the date of commencement of the Amendment Act, 2005 qua the property contemplated in the Act and the daughters contemplated in the Act.

Equal rights to daughters in Hindu Succession Act

Intent of Legislature appears to give equal rights as that of son in the coparcenary property to the daughter of a coparcener. However, the rights given to the daughter are much more than the son. It is clear from the position that when son gets any property as a coparcener then that property does not remain his exclusive property but his children get equal share in it in view of the nature of the property and effect of the law. Whereas, if the daughter gets any property as a coparcener that will be her exclusive property. Her children will not get any share in it. The position can be explained properly by way of illustration.

Illustration :- A person ‘X’ has wife ‘Y’, son ‘S’ and daughter ‘D’. ‘X’ has 40 acres ancestral land. Prior to the amendment Act, 2005; ‘X’ & ‘S’ were having equal rights in the land being coparceners. On commencement of the Amendment Act, 2005, ‘D’ also becomes coparcener and acquires birth right in that land equal to as that of ‘S’. Thus, ‘X’, ‘S’ & ‘D’ being coparceners have equal rights in the land. On the demand of partition by ‘S’, the land will be equally divided amongst ‘X’, ‘Y’, ‘S’ & ‘D’. The reason is that as per law mother gets equal share as that of son in case of  partition of ancestral property. Thus, out of 40 acres land ‘X’, ‘Y’, ‘S’ & ‘D’ each will get 10 acres land. That prima-facie shows equality between son & daughter. However, there is no equal rights of ‘S’ & ‘D’. Reason is that 10 acres land acquired by ‘S’ on said partition is not his exclusive property but his children acquire birth right in that 10 acres land. If ‘S’ has wife ‘W’, son ‘S1’ and daughter ‘D1’, then ‘S1’ & ‘D1’ acquire equal birth rights in that 10 acres land and on partition, ‘S’, ‘W’, ‘S1’ & ‘D1’ each will get 21⁄2 acres land. As far as 10 acres land acquired by ‘D’ remains her exclusive property as her children are not her coparceners and hence, cannot acquire birth right in that 10 acres land. Thus, the son ‘S’ will be exclusive owner of 21⁄2 acres land whereas the daughter ‘D’ will be exclusive owner of 10 acres land. The Act of 2005 confers birth right on the daughter of a coparcener and no new right by way of succession was conferred on the daughters. Hence, the name of the Act “The Hindu Succession Amendment Act 2005” is A Misnomer. The name of the Act should have been “The Hindu Daughters’ Birth Right to Coparcenary Property Act”. 

 

Introduction

An exporter without any commercial contract is completely exposed of foreign exchange risks that arises due to the probability of an adverse change in exchange rates. Therefore, it becomes important for the exporter to gain some knowledge about the foreign exchange rates, quoting of exchange rates and various factors determining the exchange rates. In this section, we have discussed various topics related to foreign exchange rates in detail.

Spot Exchange Rate
Also known as “benchmark rates”, “straightforward rates” or “outright rates”, spot rates represent the price that a buyer expects to pay for a foreign currency in another currency. Settlement in case of spot rate is normally done within one or two working days.

Forward Exchange Rate
The forward exchange rate refers to an exchange rate that is quoted and traded today but for delivery and payment on a specific future date.

Method of Quoting Exchange Rates
There are two methods of quoting exchange rates:

• Direct Quotation: In this system, variable units of home currency equivalent to a fixed unit of foreign currency are quoted.
  For example: US $ 1= Rs. 42.75
• Indirect Quotation: In this system, variable units of foreign currency as equivalent to a fixed unit of home currency are quoted.
  For example: US $ 2.392= Rs. 100

Before 1993, banks were required to quote all the rates on indirect basis as foreign currency equivalent to RS. 100 but after 1993 banks are quoting rates on direct basis only.

Exchange Rate Regime

The exchange rate regime is a method through which a country manages its currency in respect to foreign currencies and the foreign exchange market.

• Fixed Exchange Rate
  A fixed exchange rate is a type of exchange rate regime in which a currency’s value is matched to the value of another single currency or any another measure of value, such as gold. A fixed exchange rate is also known as pegged exchange rate. A currency that uses a fixed exchange rate is known as a fixed currency. The opposite of a fixed exchange rate is a floating exchange rate.
• Floating Exchange Rate
  A Floating Exchange Rate is a type of exchange rate regime wherein a currency’s value is allowed to fluctuate according to the foreign exchange market. A currency that uses a floating exchange rate is known as a floating currency. A Floating Exchange Rate or a flexible exchange rate and is opposite to the fixed exchange rate.
• Linked Exchange Rate
  A linked exchange rate system is used to equlise the exchange rate of a currency to another. Linked Exchange Rate system is implemented in Hong Kong to stabilise the exchange rate between the Hong Kong dollar (HKD) and the United States dollar (USD).

Forward Exchange Contracts
A Forward Exchange Contract is a contract between two parties (the Bank and the customer). One party contract to sell and the other party contracts to buy, one currency for another, at an agreed future date, at a rate of exchange which is fixed at the time the contract is entered into.

Benefits of Forward Exchange Contract

• Contracts can be arranged to either buy or sell a foreign currency against your domestic currency, or against another foreign currency.
• Available in all major currencies.
• Available for any purpose such as trade, investment or other current commitments.
• Forward exchange contracts must be completed by the customer. A customer requiring more flexibility may wish to consider Foreign Currency Options.

Foreign Currency Options
Foreign Currency Options is a hedging tool that gives the owner the right to buy or sell the indicated amount of foreign currency at a specified price before a specific date. Like forward contracts, foreign currency options also eliminate the spot market risk for future transactions. A currency option is no different from a stock option except that the underlying asset is foreign exchange. The basic premises remain the same: the buyer of option has the right but no obligation to enter into a contract with the seller. Therefore the buyer of a currency option has the right, to his advantage, to enter into the specified contract.

Flexible Forwards
Flexible Forward is a part of foreign exchange that has been developed as an alternative to forward exchange contracts and currency options. The agreement for flexible forwards is always singed between two parties (the ‘buyer’ of the flexible forward and the ‘seller’ of the flexible forward) to exchange a specified amount (the ‘face value’) of one currency for another currency at a foreign exchange rate that is determined in accordance with the mechanisms set out in the agreement at an agreed time and an agreed date (the ‘expiry time’ on the ‘expiry date’). The exchange then takes place approximately two clear business days later on the ‘delivery date’).

Currency Swap
A currency swap which is also known as cross currency swap is a foreign exchange agreement between two countries to exchange a given amount of one currency for another and, after a specified period of time, to give back the original amounts swapped.

Foreign Exchange Markets
The foreign exchange markets are usually highly liquid as the world’s main international banks provide a market around-the-clock. The Bank for International Settlements reported that global foreign exchange market turnover daily averages in April was $650 billion in 1998 (at constant exchange rates) and increased to $1.9 trillion in 2004 [1]. Trade in global currency markets has soared over the past three years and is now worth more than $3.2 trillion a day. The biggest foreign exchange trading centre is London, followed by New York and Tokyo.

 

Introduction
The foreign customer may ask for product samples before placing a confirmed order. So, it is essential that the samples are made from good quality raw materials and after getting an order, the subsequent goods are made with the same quality product.

Extra care should be taken in order to avoid the risk associated in sending a costly product sample for export. Secrecy is also an important factor while sending a sample, especially if there is a risk of copying the original product during export.

Before exporting a product sample an exporter should also know the Government policy and procedures for export of samples.

While sending a product sample to an importer, it is always advised to send samples by air mail to avoid undue delay. However, if the time is not an issue then the product sample can also be exported through proper postal channel, which is cheaper as compared to the air mail.

Sending Export Samples from India

Samples having permanent marking as “sample not for sale” are allowed freely for export without any limit. However, in such cases where indelible marking is not available, the samples may be allowed for a value not exceeding US $ 10,000, per consignment.

For export of sample products which are restricted for export as mentioned in the ITC (HS) Code, an application may be made to the office of Director General of Foreign Trade (DGFT).

Export of samples to be sent by post parcel or air freight is further divided into following 3 categories, and under each category an exporter is required to fulfill certain formalities which are mentioned below :

1. Samples of value up to Rs.10, 000- It is necessary for the exporter to file a simple declaration that the sample does not involve foreign exchange and its value is less than Rs. 10,000.
2. Samples of value less than Rs. 25,000- It is necessary for the exporter to obtain a value certificate from the authorised dealer in foreign exchange (i.e. your bank). For this purpose, an exporter should submit a commercial invoice certifying thereon that the parcel does not involve foreign exchange and the aggregate value of the samples exported by you does not exceed Rs. 25,000 in the current calendar year.
3. Samples of value more than Rs. 25,000- It becomes necessary for the exporter to obtain GR/PP waiver from the Reserve Bank of India

Export Samples against Payment
A sample against which an overseas buyer agrees to make payment is exported in the same manner as the normal goods are exported. Sample can also be carried personally by you while travelling abroad provided these are otherwise permissible or cleared for export as explained earlier. However, in case of precious jewellery or stone the necessary information should be declared to the custom authorities while leaving the country and obtain necessary endorsement on export certificate issued by the Jewelry Appraiser of the Customs.

Export of Garment Samples
As per the special provision made for the export of garment samples, only those exporters are allowed to send samples that are registered with the Apparel export Promotion Council (AEPC). Similarly, for export of wool it is necessary for the exporter to have registration with the Woolen Export Promotion Council.

Export of Software
All kinds electronic and computer software product samples can only be exported abroad, if the exporter dealing with these products is registered with the Electronics and Computer Software Export Promotion Council (ESC)

Similarly samples of other export products can be exported abroad under the membership of various Export Promotion Councils (EPC) of India.

 

Introduction

Many first time exporters or firm managers believe the myths about exporting  that it’s too difficult or too costly to sell their product in a foreign country. But given below the some of the important facts that will help a first time exporter to clear all his misconceptions.

1. Myth: I Am Too Small to Export

Only large firms with name recognition, abundant resources, and formal export departments can export successfully.

It is true that large firms typically account for far more total exports but the real fact is that vast majority of exporting firms in most countries are small and medium-sized enterprises (SMEs).

2. Myth: I Cannot Afford to Export

I don’t have the money for hiring new employees, for marketing abroad, or expanding production for new business.

There are various low-cost ways to market and promote abroad, handle new export orders, and finance receivables. This does not require hiring new staff or setting up an export department. At little or no cost for example, you can receive product and country market research, worldwide market exposure, generate trade leads, and find qualified overseas distributors through various Commodity Boards and Export Promotion Councils.

3. Myth: I Cannot Compete With Large Overseas Companies

My products are unknown and my prices are too high for foreign markets.

If the product is known in the domestic market then it’s a plus point but even an unknown product can be exported in a foreign market. Low demand of a product doesn’t indicates that it will be also not accepted in the international market.

Price is also an important, but it is not the only selling point. Other competitive factors play a large role including quality, service, and consumer taste – these may override price. Also prices of a product may not be relatively high in countries with a strong currency, as in the European Union.

4. Myth: Exporting is Too Risky

I might not get paid.

Selling anywhere has risks even in the domestic market, but it can be reduced with reasonable precautions. To assure you get paid, use Letters of Credit (L/Cs). A L/C is a letter from a bank guaranteeing that a buyer’s payment to a seller will be received on time and for the correct amount. In the event that the buyer is unable to make payment on the purchase, the bank will be required to cover the full or remaining amount of the purchase. Proper documentation can minimize the risk associated with the export business.

5. Myth: Exporting is Too Complicated

Exporting is too complicated; I won’t understand the laws and documentation requirements.

You don’t need to be an expert to export. There is an abundance of resources available online that helps the first time exporter about all ins and outs of the export operations. Government of India and its associated agencies like Commodity Boards and Export Promotion Councils also provide guidelines to the exporters.

Too many people think that doing their own divorce means filling out some forms and maybe getting their spouse to sign an agreement. That’s a very big mistake.

Divorce is not about filling out forms, it is about thinking things out and making sound decisions. Likewise, if your case calls for a marital settlement agreement, having it typed and signed is not the point. The value of an agreement is the depth and detail with which you think things through and work things out together.

A lot of people are reluctant to really think about their case and make decisions. And they will do almost anything to avoid talking things over with their spouse. This is completely understandable, given the nature of divorce, but it is something you eventually need to do to get a good divorce instead of becoming a victim of divorce.

Doing your own divorce means that you do not retain an attorney. No one should unless they have to, but that doesn’t mean you can’t get advice and help.

Doing your own divorce means that you take responsibility for your case, your decisions, your life. You get information and advice, then –maybe with some help– you think things through. You find out what the rules and legal standards are and how they apply to your case, then you decide what what’s fair, what you want, how to deal with your spouse, what to do next.

If your spouse is in the picture and cares what happens, it means detailed discussions –perhaps with help– to reach a thoroughly negotiated agreement. It’s only natural to feel concerned about doing this, but don’t worry: Lesson 2 tells you exactly how you can deal with disagreement and negotiate a settlement with your spouse.

At Divorce Helpline, we help over 4,000 people each year and from them we have learned why people become victims of the legal system.
People often feel they can’t deal with their divorces, their spouses, themselves. They feel overwhelmed, so they want someone else to take over and just do it, to make it go away. The attorney says, I’ll take your case, I’ll take care of everything, I’ll get it done for you. It sounds good, but it isn’t true.
In the end, even if you retain an attorney, you will be gathering all the information anyway and making your own decisions. More than likely, you will end up negotiating the terms yourself. Most people do, even when they are represented. They eventually find that they can do it better themselves.

The legal divorce has very limited concerns: to get a judgment of divorce, you have to make arrangements for your property, your children, and support (if any). If you have a high degree of conflict, it is also about keeping the peace and protecting you, your children and your property. That’s it; that’s all the legal divorce is about.

The law is used to impose a decision in your case only when there is a disagreement that has been brought into court. If you can reach a fair written agreement with your spouse, you can get almost any terms you like without much reference to laws. But, where children are concerned, a judge might take a look at your terms to make sure they are reasonably well supported and protected.

All you get from your legal divorce is a piece of paper –a Judgment– with findings of fact and court orders on the above subjects. That’s all. This is what all the fuss is about; this is what people go to attorneys for and spend tens or hundreds of thousands of dollars to get –a piece of paper with orders about peace, property, custody, and support.

You might think that a legal divorce will solve your problems, but it probably won’t and it is critically important that you understand this so you don’t expect too much from the legal divorce–or some lawyer–and set yourself up for frustration and disappointment.

Your real divorce is about ending one life and beginning another, then making it work –spiritually, emotionally and practically. The real divorce is about breaking old patterns, making a new life and seeking a new center of balance. It’s about doing your best with the hand you’ve been dealt.

Understanding some basic things about how the real divorce works will help you enormously in dealing with yourself, your spouse and your list of practical problems.

How you feel is probably the most real thing in your life right now. Nothing else in your life is as real as your pain, your fear, your anger, hurt, guilt, tension, nervousness, illness, depression –whatever it is you are feeling.

The practical tasks you face are also very real: how to get by financially, how to rearrange the parenting of your children, what to say to family and friends, what to do next, and so on.

In your real divorce, then, you face these challenges:
Emotional: This is about breaking (or failing to break) the bonds, patterns, dependencies, and habits that attach you to your ex-spouse. It’s about learning to let go of anger, fear, hurt, guilt, blame, and resentment. You learn about past mistakes so you don’t have to repeat them. You develop a balanced view of yourself, your ex-spouse, and your marriage. You create self-confidence and an openness to new intimate relationships.

Physical: Our minds and bodies are not separate and life does not come in these neat boxes. Emotions –especially strong ones that are ignored, denied or repressed– are frequently expressed physically. During divorce, people tend to experience a lot of tension and nervousness. They get ill frequently and have accidents. This is a time when you must take extra good care of your health, pay close attention to your body, and be extra careful when driving.

Practical: This is about taking care of business on the physical plane –including the legal divorce. It’s the nuts and bolts of what to do, where to go, and how to get there as you begin to build a new life for yourself. You need to create safety and security for yourself and your children; to make ends meet in a new life-style that produces what you need and needs no more than you can produce.

Going through major life changes –in other words, re-creating your life– is demanding, hard work, but it may be the most important thing you ever do. And, unless you decide to get counseling or go into therapy, the real divorce won’t cost a dime!

The legal divorce vs. your real divorce
The legal divorce has very limited concerns: to get a judgment of divorce, you have to make arrangements for your property, your children, and support (if any). If you have a high degree of conflict, it is also about keeping the peace and protecting you, your children and your property. That’s it; that’s all the legal divorce is about.

The law is used to impose a decision in your case only when there is a disagreement that has been brought into court. If you can reach a fair written agreement with your spouse, you can get almost any terms you like without much reference to laws. But, where children are concerned, a judge might take a look at your terms to make sure they are reasonably well supported and protected.

All you get from your legal divorce is a piece of paper –a Judgment– with findings of fact and court orders on the above subjects. That’s all. This is what all the fuss is about; this is what people go to attorneys for and spend tens or hundreds of thousands of dollars to get –a piece of paper with orders about peace, property, custody, and support.

You might think that a legal divorce will solve your problems, but it probably won’t and it is critically important that you understand this so you don’t expect too much from the legal divorce–or some lawyer–and set yourself up for frustration and disappointment.

Your real divorce is about ending one life and beginning another, then making it work –spiritually, emotionally and practically. The real divorce is about breaking old patterns, making a new life and seeking a new center of balance. It’s about doing your best with the hand you’ve been dealt.

Understanding some basic things about how the real divorce works will help you enormously in dealing with yourself, your spouse and your list of practical problems.

How you feel is probably the most real thing in your life right now. Nothing else in your life is as real as your pain, your fear, your anger, hurt, guilt, tension, nervousness, illness, depression –whatever it is you are feeling.

The practical tasks you face are also very real: how to get by financially, how to rearrange the parenting of your children, what to say to family and friends, what to do next, and so on.

In your real divorce, then, you face these challenges:
Emotional: This is about breaking (or failing to break) the bonds, patterns, dependencies, and habits that attach you to your ex-spouse. It’s about learning to let go of anger, fear, hurt, guilt, blame, and resentment. You learn about past mistakes so you don’t have to repeat them. You develop a balanced view of yourself, your ex-spouse, and your marriage. You create self-confidence and an openness to new intimate relationships.

Physical: Our minds and bodies are not separate and life does not come in these neat boxes. Emotions –especially strong ones that are ignored, denied or repressed– are frequently expressed physically. During divorce, people tend to experience a lot of tension and nervousness. They get ill frequently and have accidents. This is a time when you must take extra good care of your health, pay close attention to your body, and be extra careful when driving.

Practical: This is about taking care of business on the physical plane –including the legal divorce. It’s the nuts and bolts of what to do, where to go, and how to get there as you begin to build a new life for yourself. You need to create safety and security for yourself and your children; to make ends meet in a new life-style that produces what you need and needs no more than you can produce.

Going through major life changes –in other words, re-creating your life– is demanding, hard work, but it may be the most important thing you ever do. And, unless you decide to get counseling or go into therapy, the real divorce won’t cost a dime!

How the legal system works against you
If there were no legal system, no lawyers and no courts, divorce would still be difficult and it would still take time to go through it. Divorce is at least a major crossroad in your life, maybe even a full-blown life crisis.
So, here you are, you and your spouse, going through your personal life changes, when the State comes along and says, “Excuse me! You can’t go through this without us. Your divorce has to be conducted on our field and under our rules …and you can’t even hope to understand our rules. Oh, by the way, this divorce system we’re going to put you through has no tools for helping you solve problems or negotiate with your spouse. In fact, our system is based on conflict and it is specially designed to cause trouble and greatly increase your expense. Please pay your filing fees on the way in.”

Our system of justice is known as an “adversary system.” This is the nature of the beast. It began hundreds of years ago in the middle ages with “trial by combat,” where people with a disagreement would fight it out and whoever survived was “right.” Today, physical contact is no longer a recognized legal technique, but things are still set up as a fight. The parties are regarded as adversaries, enemies in combat. When a divorce is conducted in our legal system, the spouses and their attorneys are expected to struggle against one another and try to “win” the case, to “beat” the opposition.

The rules control the way your attorney works with you. Your attorney is required to be “adversarial,” that is, aggressive and combative. The adversary system and the way lawyers work in it is a major cause of conflict, trouble and the high cost of divorce. You want to have as little as possible to do with the legal system. It is designed to work against you.

In spite of the way things seem, lawyers are not always villains and not always to blame for stirring up conflict. But even for lawyers who mean well, the tools they use and the system they work in will usually increase conflict. Law schools do not require courses in communication or negotiation. Rather, they stress manipulation of rules of law, aggressive and defensive strategy, how to take any side of any case and make the most of it, how to argue, and how to get the most financial advantage in every situation.

Professional standards of practice dictate how a lawyer will conduct your case. For example, professional ethics forbid your lawyer to communicate directly with your spouse –the adversary. It is expected, instead, that your spouse will be represented by an attorney and your lawyer can only communicate through your spouse’s lawyer.

This means that your attorney can’t “talk sense” to your spouse, or explain to your spouse how you see things, or even help you talk to each other. It means your attorney will always have a one-sided view of your case and can never achieve an understanding any greater than your own.

If you retain a lawyer, he will definitely take your case into the contested cycle of the legal system because that’s the only thing he can do. He has to. There are no other formal tools a lawyer can use.

The primary tools the lawyer uses are pretrial motions and discovery. An attorney can take you and your spouse into court to get temporary orders for support, custody, visitation or keeping the peace. An attorney can use formal discovery to get documents and information under oath.

So, if you and your spouse can work out your own temporary arrangements and share all information openly, you’ll have no need for those incredibly expensive legal tools. You can keep your case out of lawyers’ offices and out of court.

But, if either spouse retains an attorney, that attorney will invariably write formal letters, file legal papers, make motions, and do discovery. These actions will surely cause the other spouse to get an attorney, too. Now, instead of two people who don’t communicate well, you have four people who do not communicate well. The case is now contested and the cost and conflict level will go way up. Attorneys tend to ask for more than they expect to get; it’s considered “good” practice. Your spouse’s lawyer will oppose your lawyer’s exaggerated demands by offering less than they are willing to give and by attacking you and your case at the weakest points.

Now you’re off to a good, hot start and soon you’ll have a hotly contested case, lots of cost, and a couple of very upset spouses. Fees in contested cases can run from tens of thousands of dollars each all the way up to everything.

Summary: Except in high-conflict cases, the legal system has little to offer. The things an attorney can do for you are expensive, upsetting, and tend to increase conflict rather than reduce it.

If you don’t want to (or have to) use the legal system, go around it –work out your arrangements outside the legal system and, if necessary, get limited assistance, in the form of information and advice, from attorneys who do not represent the spouses.

Take heart; we are going to tell you exactly how you can beat the system.

Advantages to an agreement
The marital settlement agreement (MSA) is your key to avoiding lawyers and the legal system, but that’s not all –it has many other important advantages. Your MSA actually becomes your Judgment. It is either attached to and incorporated in the Judgment or the Judgment will be written to include all the terms of your agreement.

With a good MSA you get total control over your Judgment because you decide all the terms ahead of time. Without an agreement, you can’t be sure exactly what some judge might do. The MSA has far more depth, detail, flexibility and protection than a plain Judgment. Almost anything that’s on your mind or in your lives can be included and resolved any way you like.

Some states have simplified procedures that allow you to get your divorce without going to court –if you have an agreement. Without an agreement, you almost certainly will have to go to a hearing to get your Judgment.

What’s most important is that you get a better divorce outcome when you work out an agreement. And with an agreement, people tend to heal faster and it just plain feels better.

The agreement you are about to negotiate is very valuable and worth working very hard to get. If you work it out with your spouse outside the system, you beat the system!

THE MAIN MESSAGE. To beat the legal system, you don’t go through it, you go around it. These are your keys to the high road:
you and your spouse work out an agreement
outside the legal system
without either spouse retaining an attorney.
You can get advice from attorneys, you can get an attorney/mediator to help you work out your agreement, but you do not retain an attorney to handle your divorce unless the attorneys on both sides are committed to a collaborative process.
Once you have an agreement, you have an uncontested case and there’s nothing left to do but red tape and paperwork. If you don’t need an agreement, so much the better; just do the paperwork and your’re done.

five obstacles to agreement
The next three sections are about how to deal with disagreement –from simple difference of opinion to active upset and anger– and some specific steps that will help you reach an agreement. As you will see, the things you can do yourself are far more effective than anything a lawyer can do for you.
More than 90% of all cases are settled before trial. Unfortunately, too many are settled only after the spouses have spent their emotional energies on conflict and their financial resources on lawyers. The time and effort spent battling has impaired their ability to get on with their lives and may have caused serious psychic damage to themselves and their children. The spouses could have saved themselves all that simply by agreeing to settle earlier. Why didn’t they?

Okay, here you are, heading for a divorce; your spouse is going to be involved and you want to work out an agreement. What’s so hard about that? Why don’t you just do it? Easier to say than do, isn’t it? There are good reasons why it’s hard for spouses to work out an agreement–five, to be exact:

emotional upset and conflict;
insecurity and fear;
ignorance and misinformation;
the legal system and lawyers; and, finally,
real disagreement.
To get an agreement, in or out of the system, with or without an attorney, you have to overcome the five obstacles. Let’s look at them in a little more detail to see what you’re dealing with.

The five obstacles to agreement
1. Emotional upset and conflict: This is about high levels of anger, hurt, blame, and guilt –a very normal part of divorce.

If one or both spouses are upset, you can’t negotiate, have reasonable discussions or make sound decisions. Complex and volatile emotions become externalized and get attached to things or to the children.

When emotions are high, reason is at its lowest ebb and will not be very effective at that time. There are various causes of upset:

The divorce itself, stress of major change, broken dreams, fear of change, fear of an unknown future;
Different readiness to accept the idea of divorce and willingness to proceed –the hidden cause of conflict in many cases;
History of bad communication habits or conflict;
Particular events or circumstances (a new lover, a new debt)

2. Insecurity, fear, lack of confidence, unequal bargaining power: You can’t negotiate if either spouse feels incompetent, afraid, or that the other spouse has some big advantage.

Divorce is tremendously undermining and tends to multiply any general lack of self-confidence and self-esteem. Also, there are often very real causes for insecurity: lack of skill and experience at dealing with business and negotiation, and lack of complete information and knowledge about the process and the marital affairs.

It doesn’t matter if insecurity is real or reasonable; it is real if it feels real.

3. Ignorance and misinformation: Ignorance about the legal system and how it works can make you feel uncertain, insecure and incompetent. You feel as if you don’t know what you are doing …and you are right.

Misinformation is when the things you think you know are not correct. Misinformation comes from friends, television, movies, even from lawyers who are not family law specialists. It can distort your expectations about your rights and what’s fair. It’s hard to negotiate with someone who has mistaken ideas about what the rules are.

Fortunately, both conditions can be easily fixed with reliable information.

4. The legal system and lawyers: The legal system does not help you overcome obstacles to agreement but, rather it is one of the major obstacles that you have to overcome. The legal system is designed to work against you. You want to avoid the legal system as much as possible –and you can. You can beat the system.

5. Real disagreement: These are the real issues that you want to deal with rationally and negotiate with your spouse.

Real disagreement is based on the fact that the spouses now have different needs and interests. After dealing with the first four obstacles, these real issues may turn out to be minor, but even if they are serious, at least they can be negotiated rationally

How to beat the system
Of course you want to get your Judgment –that’s the goal of your legal divorce– but you don’t want to go through the adversarial legal system to get it. You don’t want to get all tangled up with lawyers and courts because the system is designed to work against you.

You don’t go through the legal system, you go around it. You work outside the legal system to make arrangements and reach an agreement with your spouse.

By doing things yourself, you have far more control and far better solutions. Working outside the legal system is the way you get a low conflict, low impact, higher quality divorce.

Look again at the map that was discussed in the section, The Divorce Roadmap.

To stay outside the legal system, do not retain an attorney. Neither spouse should retain one. The key word is “retain.” We’re not saying you should never get help from an attorney if you want it, just that you should not retain an attorney unless you have no other choice. If you follow the steps in this short course, you may not need any help at all from an attorney. If you do, you will know how to keep it limited and under control.

Retaining an attorney means turning over both your responsibility for your case and control of it. The attorney represents you. You sign a retainer agreement, then you pay Rs 10,000 to Rs 25,000 “on retainer” and your attorney has now taken over control of your case. This is what they mean when they say, “I’ll take your case.”

And they do take your case –right into the high conflict, low solution legal system. They have to; it’s the law.
Because you don’t want to go into a system that works so hard against you, you must not retain an attorney unless you have no other choice. You should retain an attorney if you are facing immediate threat of harm. You need an attorney if you:
Believe your spouse poses a danger to you, your children or your property;
Can’t get support from your spouse and have no way to live;
Think your spouse is transferring, selling or hiding assets.
In such cases, you should get a good attorney right away; otherwise, you only want an attorney for information, advice and maybe some drafting and paperwork.

The attorney retainer is the poison apple –don’t bite it
If you feel uneasy about not retaining an attorney, don’t worry; in the rest of this course, you are going to learn very effective things you can do for yourself and how to get help if you need it.

There are three different kinds of cases that respond to self-help techniques:
No agreement between the spouses is needed;
An agreement will be fairly easy to work out;
An agreement is needed but it may not be easy to work one out.

No agreement needed or spouse not involved. In some cases, an agreement between the spouses either isn’t necessary or not possible. In some cases, this is because there are no children, very little property, few debts to worry about, no need for support –in short, nothing to agree to. There are also cases where the Respondent simply will not participate and will not file a Response. Respondent is either long gone or simply doesn’t care. This case will be relatively easy to complete.

Agreement needed. Most couples, however, do need an agreement or should have one. If you have children, you should work out a good parenting plan in a written agreement. If you have income or property worth protecting, or lots of debts to be paid, or if you need to work out spousal or child support arrangements, you should definitely have a written agreement. If Respondent is involved and cares how the divorce is going to be arranged, you should have an agreement.

Agreement will be easy to work out. If you think it will be no problem for you and your spouse to work out an agreement, the rest of this lesson is about the many advantages of a good agreement.

Agreement may not come easily. This describes the situation for most couples going through divorce. If, like most people, you don’t think you can deal with your spouse, don’t worry –Lesson 2 tells you exactly how to deal with disagreement and negotiate a settlement.

In the rest of this short course you will learn that the things you can do to help yourself are far more effective than anything a traditional attorney can do for you. You will learn about the obstacles to agreement and how to overcome them, how to negotiate effectively with your spouse, and where to get help if you have trouble with the negotiations.

The solutions are in your hands. Apart from the legal system –which you can avoid– all obstacles to your agreement are personal, between you and your spouse and between you and yourself.

Take care. Pay special attention to emotional upset and especially insecurity and fear. These are the forces that drive people into a lawyer’s office. You want to avoid doing anything that might increase the upset and fear of either spouse.

The upset person is saying, “I can’t stand this, I won’t take it anymore! I’m going to get a lawyer!”
The insecure person is saying, “I can’t understand all this, I can’t deal with it, I can’t deal with my spouse. I want to be safe. I need someone to help me. I’m going to get a lawyer.”
And this is how cases get dragged into unnecessary legal conflict.

You need to arrange things so both spouses are comfortable about not retaining an attorney. If you think your spouse may be upset or insecure, you have to be very careful and patient. If you are feeling incapable of dealing with your own divorce, the information in this book will help a lot and you will see that you can get all the help and support you need without retaining an attorney.

How lawyers can help without hurting
Legal information and advice. Lawyers who specialize in divorce can be extremely useful to you when they do not insist on being retained to do the whole divorce. It can be very cost-effective to get information and advice on specific subjects or a case evaluation. That may be all the legal help you will need. It is usually important to know what the rules are in your state and whether or not one can reasonably predict what a judge would do if presented with your facts.
If the standards in your state are predictable, you can use that to guide your negotiations. An experienced divorce attorney can also help sort out the many tax issues of divorce for you.

Drafting your agreement. You may decide to have a lawyer draft your marital settlement agreement or look over one you have made yourself. Writing an agreement that is clear, unambiguous and legally correct can be a technical challenge, so unless you get your language directly from a reliable source and do not depart much from it, then having a lawyer draft your agreement, or at least check it, it s a very good idea.

Collaborative law. This is a very small but very interesting movement. These lawyers represent you fully and require a retainer agreement, but in the agreement they state that they will not use litigation or go to court for any adversarial purpose. Instead, they emphasize negotiation and mediation. The “collaborative” part means that the attorneys on both sides should have this orientation so they can work well together to settle the case. When up against a traditional attorney, the case is far more likely to go into litigation.

At the present time, Collaborative Law is well-established only in Minneapolis, thanks to the pioneering work of Stuart Webb. One of the goals of the Divorce Helpline Directory is to find collaborative lawyers and provide a vehicle for them to reach the public.

Who to pick? You want three things in a divorce attorney: experience, reliability, and a good attitude. Your lawyer should specialize in divorce –at least 50% of their case load. Your attorney must be someone you can trust and work with comfortably, someone who has your confidence.

You are looking for an attorney who can:
communicate in plain English
simplify instead of complicate your case
provide neutral, settlement-oriented advice
seek practical solutions instead of legal ones

If you want advice, be sure to look for a lawyer who is trained in divorce mediation and who practices it professionally. Mediation-minded attorneys are more likely to give you neutral and problem-solving advice, whereas traditional attorneys tend to be more oriented toward conflict and their advice tends to be adversarial.

If you want to know the law in your state or get an appraisal of likely outcomes in your local courts, or drafting of a marital settlement agreement, then you are more concerned with the attorney’s knowledge and experience. Attitude is a little less relevant here, but watch out for the attorney who seems to make things more complicated rather than less, or who urges you to do things that could lead to conflict.

We suggest that you generally avoid anyone who seems cynical, unnecessarily aggressive, or moralistic. For most cases, you will want to look for someone who prefers to avoid conflict in favor of negotiation and compromise. You are trying to find an attorney who prefers to keep the case cool.

Avoid situations where you don’t like the way the attorney or the staff treat you. Look for lawyers who listen well to what you want and who seem willing to do things your way. Make sure the attorney knows it is your life, your case, and that you are in charge

How to use your lawyer. Be very well prepared. Know your facts, know what you want to ask, and know exactly what you want the lawyer to do for you. Plan each conversation; make an agenda; write down the things you want to talk about; take notes on every conversation; keep track of time spent on all phone calls and meetings.

Keep a file for all your notes, letters and documents. Do as much as possible on the phone and by mail to keep office time at a minimum. Let the attorney know that you expect phone calls to be answered by the next working day.

When you talk to a lawyer, stick to the facts. Don’t just chat, ramble, or complain about things your spouse did unless you actually want your lawyer to do something about it. Lawyers cost too much for you to use them for company, sympathy or consolation –that’s what family, friends and counselors are for. A lawyer is not the right person to make your decisions or lead your life: you are.

Being in control of your own case and your own life is the single best thing you can do in any divorce, so it is essential that you have a lawyer who can work cheerfully on that basis. If you are well prepared, organized and business like, that will help the lawyer to see that you are in charge of things.

Walk softly and carry a big stick. If you become dissatisfied with your lawyer, you don’t have to fire them because they haven’t been retained. Just stop. However, if you have a contract (retainer) with your lawyer, you have to take some formal steps to discharge the lawyer from your case. Go to the Reading Room and look at the article How to fire your lawyer