When confronted with an oncoming divorce or separation, most clients instinctively and anxiously want to know “what the law is” in their case. There are actually two answers to that question, one of which is rarely ever addressed by family law attorneys.
Most lawyers will readily tell their client what the law “is” by explaining the effect of the laws. However, they often neglect to inform their clients about the role of the law.
In short, in family cases, the law is the set of rules that the community has chosen to resolve family disputes when the parties cannot find a better way to resolve their issues. It is Plan B, a fallback option, a parachute, the rules you will play by when all else fails. It is not the be all, end all of family law cases.
You certainly can choose to resolve your case by using the law as your standard. But, you don’t have to. And in the opinion of many wise and experienced family lawyers, you should at least look for better options before you choose to let the law determine the outcomes of your issues.
Obviously, some family laws have to be followed (e.g. all separation agreements in North Carolina have to be in writing with a notarized signature of each party) And you should consult with an attorney about which laws are mandatory and which ones are optional. But most of the laws that determine the cash flow, property division and co-parenting issues in a divorce are elective. That means that you can choose to follow the law when resolving these issues, or come up with a better solution that fits your family.
The law is useful, important and worthy of respect. It serves as as very useful comparison for any solution that you are considering in resolving your issues. But, the law is not necessarily the best standard to use in resolving your family law issues. In the end, the law is simply the set of rules you will play by if you can’t agree to do something better.