You start a divorce with a Complaint.  The other party files an Answer and may also file a Counter-Complaint.  You then have to file an Answer to the Counter-Complaint.

The person who files the Complaint is called the Plaintiff.  The person who files the Answer is the Defendant.  But when the Counter-Complaint is filed, the Plaintiff also becomes the Counter-Defendant and the Defendant also becomes the Counter-Plaintiff.

This all makes for cumbersome and confusing writing and speaking.  A judge once interrupted me in court with “We just have two parties in this case.  The Plaintiff and Defendant.  Let’s keep it like that.”

In another case I filed a Motion.  Opposing counsel filed an Opposition.  I filed a Reply to the Opposition.  Opposing counsel filed a Sur-Reply to my Reply.  When we got to the hearing, the judge told us, “ We only have Motions, Oppositions and Replies in my courtroom.  There are no such things as Sur-Replies.”

Good advice.  Like everything in life, it pays to keep it simple in divorce court.

There is no easy way to bring up this conversation.  Some people just can’t do it, and pay their lawyers to send a letter to their spouse asking for a divorce or separation agreement.

But when clients ask me how to do it themselves, I give them this advice.  Use questions.  Here are some of the questions I suggest to get the discussions started.

Are you happy with our marriage?
Do you think I’m happy?
What should we do about it?
Do you think we would be happier if we separated?
When you look at our future together, what does it look like?
Do you want a divorce?
Do you think one of us ought to see a lawyer?

“The Un-Divorced” is an article in The New York Times by Pamela Paul.  It describes what may be a growing trend in relationships in which two people are living separate lives but see no reason to divorce.  They may even be living with another paramour.  They file joint tax returns and stay on the same health insurance policy.  They might keep each other as pension and life insurance beneficiaries.

As John Frost, 58, says, “Why bring in a bunch of lawyers? Why create rancor when there’s nowhere to go but down?”

I call this Option Zero.  I tell my clients you have two options.  One is a Separation Agreement.  Two is a divorce.  Oh yes, and there is Option Zero.  Do nothing.  Stay married.  Be un-divorced.

Most do not go for Option Zero.  Some want to get remarried.  Some are desperately unhappy with their lives in the status quo and want to move on.  Others do not want to keep contributing to the marital asset pot.  A few, however, can tolerate being un-divorced.