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Part I: What is the solution to self-fault?
One or both parties may be responsible more or less for the evolvement from a love-based marriage to separation with each other, as the proverb says: “It’s impossible to clap with one hand”. The typical offenses the male or female party conducted include:
1. Disloyal to the other party with regard to the physical or ideological respect;
2. Family violence;
3. Unharmonious domestic relations;
4. The characters between both parties are conflicted with each other.
The most common offense conducted by one party in conjugal relation is the extramarital affairs, which accounted for over 50% of the cases we acted for. Of course, the extramarital relations may not occur at the very beginning. Due to the different characters and be not identical in views, the conjugal relations drifted apart to the cheerlessness. Male or female party may cotton to other opposite sex, so as to cause the extramarital relations.
People have feelings. Therefore, everyone, even the great man, needs to love and be loved. It is possible that the feelings may change with circumstance, which is so-called as “People’s feelings change with the circumstance”. We shall advocate the unswerving and eternal love, but the reality is always different. Based on Marriage Law of P.R.C., both parties in conjugal relation shall be faithful to each other. So, it is immoral to conduct the extramarital sex relation. In reality, the party involved is fully aware of the immorality to conduct the extramarital love, but he/she always cannot help picking up this baneful fruit, which looks so alluring.
Two circumstances may occur for the party who has offense. For the first circumstance, prior to the divorce lawsuit, the party who commits the offense has admitted his/her improper behaviors in writing or at the wittiness of relatives and friends. That means the opposite party has grasped the evidence for the offenses conducted by the party who has the mistakes. For the “letter of guarantee”, which has affirmed the extramarital sex relation, the court may, based on the content thereof, validate such actuality. If the “letter of guarantee” has questionable content such as the party who commits offense has a close relation with opposite sex or promise to love his/her spouse in the future, while the extramarital relation is not confirmed, generally speaking the court may not issue a verdict to affirm the offense of the party involved as referring to this regard. For the second circumstance, the opposite party had not obtained the effective evidence to show the offense of the party involved. Therefore, as the party who has offenses brings up a divorce proposal, the opposite party has to search for the evidence that could show the extramarital relation of the party who has offenses. As addressing the divorce to the opposite party, the party involved shall handle the extramarital relation properly. In a bid to avoid the unfavorable aspect in the court, the party involved shall not cohabit with extramarital party, so as to prevent the conflicting from acute. In addition, conduct the misunderstanding properly. For instance, as having an intimate talk with the opposite sex friend, the party involved is found by his/her suspicious spouse and the relatives & friends thereof. Sometimes, the opposite may break in full fury. In this case the party involved shall avoid to confront the opposite party face to face, so as to lest the blooding or violence. The proper way is that the party involved shall stabile the circumstance and call the police to tackle the problem.
With regard to the divorce cases concerning unharmonious relation and conflicting characters, it is difficult to judge who is right or who is wrong, just as the proverb says: “even the honest and upright official cannot handle the household affairs”.
We suggested the party who has the offense should make a concession concerning the division of communal estates. After all, the party who has offense shall bear the reasonability for his/her misbehavior. However, if the opposite likes to “pick on you endlessly when he/she is right”, and brings up unreasonable request for the division of communal estates, the party who has offense shall not yield to the opposite party too much, so as to bear overweight burden.
Part II How to gain parents’ support during divorce
We should say the blood relation composes the selfless love in the world: love parents give to their children; Love between the couple is self-absorbed, while love parents granted to their children is selfless. In reality, as collecting evidence from the parents, most parents may claim that they opposed the marriage of their children at the very beginning. The concession is not made until the strongly persistence of their children. Now children want to get divorced, for most parents, they felt heartbreak and sufferings.
On the one hand, parents devote deeply to their children, while they fail to accept the fact that their children got divorced due to the consideration of traditions and their own experiences. For some cases involving the extramarital love, parents always set their face against the divorce of their children and threatened to break up the set membership in case their children insist on the divorce.
Some sorrowful love story describes the blind love between the youth, while such affairs are opposed by the parents thereof. So the couple left for a place far from home or united in matrimony themselves. We should say this is imperfect love because there is a very close relationship between the parents and the couple. Therefore, as conducting the divorce, obtaining the support from parents is necessary.
How to Gain the support from parents:
(1) vibration shall be shown to parents.
Inharmonious marriage will bring deep sufferings, which may not be caused by family violence or extramarital love. The conjugal relation may be destroyed by the development of modern society, heightened self-value and character discordance as well as insufficient mutual understanding. It is terrible that there is no longer confidence between the husband and wife. So, as intending to get divorced, the party involved shall explain his/her true feeling to the parents so as to obtain the support from them.
Realistically, the party involved may dare not to tell the truth because he/she got involved in the extramarital affairs or mistakes. For such case, it is better not to tell the details to parents because parents always not accept the occurrence of extramarital affairs. If the opposite party or parents have some evidences, it might as well tell the truth to parents. Owning to the selfless love parents gave to their children, the parents have no alternative but to stand at their children’s side even though their children have the mistakes.
(2) show the decision to get divorce firmly
As speaking of the divorce, most parents may make opposition at the very beginning. So when communicating with parents, the children shall firmly show the decision to get divorced, so as to make parents feel the will of their children is impossible to turn back. Changeable feelings shall not appear because it may make parents feel the contradiction in their children’s minds. Therefore, the parents will be certainly against the divorce conducted by their children.
In reality, some parents may prevent their children from divorce through the economic intervention such as refusing to help return the property loaned by the children and controlling the money thereof. So, for such cases, if the children insisted to get divorce even though it may cause empty-handed, the parents are to give in finally.
(3) make parents feel least suffering as concerning the divorce of children
As knowing that their children intend to get divorced, parents always suffered physically and mentally. Parents always take their children into account; sometimes their health may be affected by the divorce cases conducted by their children. So, for the party involved, he/she shall be best of his/her ability to decrease the affection to the parents due to the divorce.
(4) try to show the firmness and calm before the parents
During the period of divorce, the party involved shall try to show the firmness and calm before the parents, so as to avoid the unhappiness and obsession of the parent. For marriage or divorce, both choices are made by the party involved, so he/she shall bear it and show the firmness and calm before the parents, so as to reduce the stress of the parents.
Part III: What should be done to prevent and face the domestic violence?
As conducting the divorce, both parties are easy to be ignited. So it is necessary to prepare for family violence, especially for those families that have violence tendency. Both objective understanding and psychotically preparation are needed for the prevention from family violence.
According to law sense, family violence shall not be made up until it reaches certain number of times or cause certain injures. Therefore, occasional maltreatment among the family members will not be defined as family violence. In a bid not to fall victim to family violence, the disadvantaged shall make sufficient preparation to deal with the family violence.
(1) disputes between two parties shall not be deepened.
As conducting the divorce, both parties incur dislike to each other, such trivial matters as unsolicited comments may burn with rage. Therefore, the disadvantaged party, especially the female party shall yield to some extent, so as to avoid the possible injury. The proverb says:” A little impatience spoils great plans”. It is a wise way for the female party to avoid the sharp point as the disputes occurred.
(2) ask for help from police or neighborhood committee in case the male party adopts the violence to the female party.
In accordance with Marriage Law and relevant regulations, both the public security bureau and neighborhood committee have the duty to prevent family violence and safeguard the rights of women. Don’t be afraid of the family scandal would be made known. If the family violence occurs, ask for assistance from the police as soon as possible. If necessary, the victim shall ask the police to take down the evidence concerning the family violence in writing or the injury checklist, so as to proof the family violence conducted by the male party.
Even though the neighborhood is part of the non-governmental circles, it plays an active role for the mediation of the disputes. In addition, most members of neighborhood committee are warm-hearted and sincere seniors, so that they usually have enough experiences to handle the disputes between the couple. Unlike some organizations, the neighborhood committee will operates in coordination with the victims for the collection of evidences rather than stick to the principle as “the less trouble the better”.
(3)_ if it permits, separation shall be adopted for the prevention from family violence conducted by the male party.
Though the family violence conducted by the male party may be unfavorable for the male party during the divorce lawsuit, the female party shall not rely on such condition to gain a little bit superiority, so as to be hurt both physically and mentally. It is a wise way to adopt the separation so as to proof the break up of relation as well as avoid the family violence.
Part IV: Is separation needed prior to divorce?
As per stated above, if one party engaged in the family violence, the other party shall consider the separation. Of course, the separation is not limited to such condition as family violence. One party has made decision to get divorced, also the economic conditions and legal maintenance thereof permit, and then the separation could be adopted, so as to proof the breaking up of conjugal relation. Even though the court may not announce the divorce verdict at the first lawsuit, the second verdict of divorce may realize in case the conjugal relation still fails to be improved. However, the following preparation shall be carried out prior to the separation:
(1) The legal maintenance shall be settled. For instance, as making the decision to conduct separation, the party involved shall consider whether the children should also move out herewith or whether such separation may affect the daily life of the children.
(2) Property control, if conducting the separation, the party involved may fail to control the property at home. So, it is necessary to make an inventory of the properties at home. For instance, the property items could be taken by the cine-camera or camera. Meanwhile, asking neutral friends to act as the witness. Deposit books and gold & silver articles shall be kept properly.
(3) The place where the party who moved out to live shall be kept confidential
In order to fend off the interference of opposite party, the party involved shall not inform the opposite party of the place where he/she lived, so as to prevent the disturbance of the opposite party. Meanwhile, the lease contract shall be made by and between the lesser and the party who rent the premises, so as to proof the fact that the separation has been conducted.
Part V: What should be done to prevent and cope with the possible extreme conduct during divorce？
In reality, due to the disagreement of the divorce requests forward by the opposite party, the party involved may look at the problem at his/her own way and claim to conduct some radical actions. The forms of common expression are listed as follows:
(1) “Game of chicken”
The party involved may claim that if the opposite party insists on the divorce, he/she may kill the whole family members thereof or abuses the children or report on the guilt of one party or both parties. In case such tricks are carried out by the opposite party, the party involved shall not give in because that is to cause the disadvantage conditions just as the proverb says: “advance by inch and retreat by foot”. In fact what the opposite party said shows he/she lacked the edge from the aspect of legal sense. So the opposite has to reach the goal through browbeating rather than the proper legal way. This kind of person generally makes the consideration on his/her own way and will not brave death. However, the party involved shall also make proper preparations so as to fend off the occurrence of eventuality. Therefore, the party involved shall avoid agitating the conflicting and clashing with the opposite party.
(2) “Self-abuse”
The opposite party may push the stress on the party involved through such self-abuse behaviors as suicide, wrist cutting and hunger strike, so as to compel the party involved to give up the intention of divorce or get more property. If the party involved found the spouse had the intention to make self-abuse, he/she shall not give in, even the opposite party made the self-abuse. The party involved sometimes may worry about the responsibilities he/she should bear in case the opposite party committed suicide. In fact just as the marriage, the divorce also belongs to the individual behavior that has nothing to do with the party who asks for divorce in term of legal sense. However, the indirect intentional murder may be formed if the party involved failed to assume the obligation to save the opposite party’s life as the suicide was committed hereby. For instance, the female party committed suicide by taking dozens of sleeping bills in front of the male party, while the male party fails to take any actions to save the life thereof. Then, the male party shall be responsible for his act and be sentenced as indirect intentional murder.
(3) “Create trouble or disturbance”
“Create trouble or disturbance”, which means that the opposite threatens to rake up the faults of the party involved by short message or malign the party who intends to divorce. For instance, the female party claims to make complainants at the work unit where the male party worked. It is impossible for the male party to prevent the female party from such action. Therefore, the male party may tell the truth concerning the divorce to the leader, so as to seek the support of the leader. If the female party went to the work unit of the male party, the work unit can send someone to receive the female party. If the disputes cannot be handled, the police may be asked. As the police brought the female party to the police station for enquire in writing, the female party may not create trouble at the male party’s work unit once again.
Thus it can be seen that the party shall not give in easily in case the opposite party took extreme actions. Otherwise the opposite may bring up more harsh terms and requests.
Part VI: What is the method to accommodate the mental discomfort in the process of divorce?
Divorce usually brings invisible mental stress and suffering to the parties involved. Sometimes the sequels of divorce may affect the whole life of the person. The state of mind after divorce varies with the sex distinction, character, age, and family background.
First, sex distinction. If the female party asks for the divorce due to her extramarital relation with others, the male party may feel the inferiority innermost. But he is also afraid of being discovered by others that he has such feelings. Therefore, he will bring up an idea to proof himself strong, so as to reach a balance at heart. For the female party, especially divorce at the first time, she may suffer a lot if the male party asks for the divorce on his own accord. The female party may no longer believe in love and be afraid of marriage. She would even conduct separation rather than marriage.
Second, age. Generally speaking, the person at a mature age bracket may adjust the state of mind after divorce easier because they could make the consideration from a thorough way, so as to minimize the side effect brought about hereby.
Third, family background. A harmonious family can reduce the ill effect to the children who get divorced. If the children got divorced, the parents shall give him/her more care than condemnation. Invariably grumbling against the children only broad the gap between the parents and children, who may feel lonelier at heart.
Generally speaking, the trauma caused by divorce needs to be removed via the hours. The duration varies with the characters of the party involved. Two years is necessary to die away the effect of divorce. The person who got divorced may experience three stages as sharp pain, pain and secret anguish. At the very beginning of divorce is the sharp pain, and then is the pain. Last stage is secret anguish, which is throughout the life of the person who got divorced. Absolute wicked person is not existed in the world. Each person has some kinds of good. So, even for the party who committed the mistakes, he/she may feel the secret anguish at heart.
It is important to adjust his/her state of mind after divorce, or the party involved may sink into the state of self-abuse and lose the sense of living. So, in a bid to fend off self-suffering, the party involved shall melt into the community. The beauty and pure feeling could be kept only through the interchanging with the society.
Part VII: What is the cost of divorce?
For a market economy society, it is necessary to conduct the cost evaluation for everything, which also covers the divorce cost assessment. The regular procedure fees for divorce include:
(1) Divorce by agreement: a small sum of money
So far divorce by agreement is the best way to cut divorce cost. As per national regulations, the divorce license only needs nine Yuan, so the divorce may be handled with just a small sum of money as including other registration fees. At present, 17000 out of 30000 divorce cases were carried out through divorce by agreement.
(2) Notarization fee for divorce: exempted
After signing the divorce agreement, some parties involved may plan to notarize the agreement. Just as the lawyer said, there is no need to notarize such agreement because the notarization is nullified in case the divorce procedures are not yet to be handled. Therefore, it is meaningless to bear the notarization that costs several hundred or thousand Yuan.
(3) Expenses for engaging the lawyer in the proceedings of divorce
For the parties involved, some conditions such as property division and emotional problems could not be solved by agreement. So, the divorce may be achieved with the help of lawyer or court, so as to speed up the process.
Currently, the fees for handling divorce case are various in Shanghai, some lawyers may need two or three thousand Yuan, while others may need ten thousand Yuan for one divorce case. The lawyer fees are based on the property objectives included in the divorce. At present average expense in Shanghai is about 5000 Yuan, which the author thought is reasonable. As engaging the lawyer, such factors as lawyer’s background, working experience and practical skills shall be taken into account. The fee collection modes include:
① Take the amount as the basic rate, and then the expenses could be added on basis of controversial property that surpasses certain amount.
For instance, one lawyer issues a charge standard for 5000 Yuan as the basic rate, if the controversial property surpasses 500,000 Yuan, the surpassed amount shall be charged separately. Some lawyers need 1% thereof, while others need 2% thereof. In a word, the more properties you possessed, the higher rate the lawyer charges.
② Agency service for risk: pay some basic expenses and then ascertain the charge amount on the basis of property amount.
For this kind of cases, the focus is on the common property division, which is sometimes difficult to be investigated or executed. For instance, one party is unfamiliar with the detailed information concerning the property, shares and banking deposits of the other party. The evidence collection conducted by the lawyer is necessary. In a bid to encourage the lawyer to carry out such investigation, the party involved may make a down payment to the lawyer (around 5000 Yuan), and then the lawyer will conduct the investigation. After the property was recovered, the lawyer will withdraw about 10-20% thereof as the remuneration.
(4) Court cost
In accordance with the lawsuit fee regulations of the Supreme People’s Court, the court collects 50 Yuan as the lawsuit fee for the divorce case of which the controversial objectives’ cost fewer than 10000 Yuan. On the basis of Article 5 of Charge Methods of People’s Court Lawsuit Fee, no charge for the property that has a total amount no more than 10000 Yuan. Otherwise, the exceeded amount shall be paid on a 1% basis.
Generally speaking, the plaintiff shall pay the lawsuit fees. For the divorce case, the plaintiff shall bear all of the lawsuit fees in the event that the divorce case was turned down by the court. If the court sentences the divorce cases, then the final lawsuit fee shall be born by both plaintiff and defendant on the basis of property proportion. In case the nolle prosequi occurs during lawsuit process, half of the procedures fee will be returned to the plaintiff.
The courts in Shanghai have a better control of lawsuit fee collection. So far no court charged such fees as traffic fee, gasoline fee, and patronage from the party involved. However, if the amount involved exceeded 10000 Yuan, the court needs to charge 1% thereof as lawsuit fee. Of course, the lawyer may try to control the disputed amount to about 10000 Yuan, so as to save the expense of the party involved. However, as the court discovered the actual amount of the property, the party involved may make up for the unpaid amount. The party involved generally may pay such amount because it means the court approved the divorce case. In the end, the lawsuit fees will be borne by both parties on the basis of property proportion.
(5) Real estate evaluation fee
If there is a big difference between both parties for the cost of the shared real estate, the court may suggest the plaintiff asking for the evaluation organization to make the property evaluation. The relevant fee shall be based on the rate of the premises. The evaluation firm may charge the party involved 1% of the housing rate. Some offer lower evaluation fee, for example, only 5000 Yuan needs to be paid for a house which costs over 1 million Yuan. However, the higher the house rate, the more expensive the evaluation fee.
The above-mentioned costs are part of the economic cost. So what about the psychological cost?
(6)Time-consuming cost
If the divorce by agreement is adopted, the whole process only needs half hour. However, for the lawsuit divorce, the duration is difficult to be determined. Generally speaking, if the negotiation is failed, the party involved has to ask for the lawyer to handle the case, which needs about two weeks. If no progress is available during this stage, the lawyer may place the case to the court. Simple process is available for domestic divorce cases, which lasts for three month. If the court fails to make the accommodation due the strong objection against the divorce of one party, the wrap up will be conducted soon. For the Chinese marriage with foreign nationals, or the complicated cases, the court may introduce the regular process for the hearing of the divorce case. The hearing duration lasts six months. If the court makes no judgment for the divorce case, the lawsuit shall be filed again after six month, which excluding the evaluation time. In fact both parties involved the divorce may experience the various states of mind, so the lawyer with rich experience may snap the right time to help forward the divorce by agreement.
(7) Mental strain
Conducting the divorce by court is the last choice for the parties involved to conduct the divorce because that means any of the involved party has to face the pressure from the society, parents and even his/her own mental strain. The divorce also affects the two families of the parties involved, so that the parties involved may be ashamed and uneasy greatly. Therefore, during the whole process of the divorce, the parties involved may experience the suffering or hard to control the feelings.
If I want to get divorced, how much shall I pay economically and psychologically?
If you have a total amount of about one million Yuan, which including a house, costing 700000 Yuan and other belongings such as stock, deposits and fund which costs 300000 Yuan, you should pay
①Counsel fee: 5000~10000 Yuan
②Lawsuit fee: 10000 Yuan
③Premises evaluation fee: 5000 Yuan
④Asking for leave twice to consult the lawyers, half day for each consultant; one legal registration, half day; at least two times for accommodation and verdict. Half day for the collection of verdict.
⑤ Mental strain: it is difficult to be measured.
It is troublesome to conduct the divorce, but maybe more difficult to keep the marriage. So, divorce or not, it’s up to you!
Part VIII: Is the lawyer helpful in the divorce lawsuit?
Every one knows it is necessary to engage a lawyer as going to law, but who knows the role of lawyer in a divorce lawsuit? For the court, it has a set of rules on the divorce case, which means the divorce will not be approved until it meets the 32 regulations as specified. It is awful that the party involved has to pay a large sum of money to the lawyer while the divorce could not be approved. So, is it useful to engage a lawyer as conducting the divorce lawsuit? I think we should treat the different cases with different ways, just as Chairman Mao said: “we should analyze the problem in accordance with the reality.”
(1) There is no need to engage a lawyer as concerning the following conditions:
①Emotion entanglement
For some divorce cases, the parties involved have few disputed properties. The divorce is caused due to the emotion entanglement. Therefore, there is no need to engage a lawyer, because the lawyer is not the marriage psychological consultant. If the party involved has the emotion problems, the psychological consultant is the best choice.
②Over-anticipated
For some cases, the biggest controversial issue is not the distribution of communal estate, but the mental compensation. As specified by the Article 46 of Marriage Law, the compensations are unable to be achieved except the four conditions subjecting to the law. For example, such condition as extramarital relations is not covered in the scope of compensation according to the law. Maybe, one party could give the pressure on the other as engaging a lawyer, but if it is useless, the efforts one party having spent are wasted.
③The result is clear and definite
For some cases, the amount of controversial objectives is large, but the legal procedures are very simple. For instance, one party purchased a house before marriage and got the ownership license. After several years, one party intended to get divorced and the other party asked for the distribution of the house property. It is not necessary to engage a lawyer because such legal procedures are simple. For this kind of case, unless otherwise specified, the house shall be the belonging of the party who purchased it. For another example, the male party borrowed money from the parents of the female party and signed the receipt, and then the parents thereof intended to withdraw the money, the money must be returned.
④“Follow the patterns”
For some case, it only involves the legal patterns, so it is enough to spend several hundred Yuan to consult rather than engage the lawyer. For instance, the household registration of both parties is out of Shanghai, while both parties have lived in Shanghai for over years. Now both parties agree to get divorced, but having to come back the original residence for handling the divorce procedures. So, the mediation letter could be gained at the same day when applying. There is no need to engage a lawyer. The total expense only costs 50 Yuan. Also, such way is available for the parties involved who are at the abroad.
⑤“Psychological panic”
For some divorce cases, the disputes or legal relations are simple, but the parties involved always got panic mentally due to the lack of experience for going to law or so called “faults” grabbed by the other party. Actually there is no actual meaning from the sense of law. Therefore, spending a lot of money on engaging the lawyer is not necessary.
(2) Engaging a lawyer is needed as concerning the following conditions
① “Provided with economic strength”
No matter the case is big or small, simple or complicated, if the party involved is provided with enough economic strength, it is good to engaging the lawyer, so that it is helpful for the analysis of the case or the lawyer may have dealings with the party involved who is unwilling to contact.
②The case is complicated
Generally speaking, as conducting the divorce lawsuit, the party involved has experienced a long and non-effect negotiation. He/she is troubled by such conditions as concerning the distribution of communal estate, breaking up evidence collection and a lot of preparations prior to the lawsuit. Therefore, the role of a lawyer is fully displayed. On the other hand, as receiving the indictment, you are shaken to speechless by the fabricated conditions and complete nonsense thereof. At this moment you need the plea to defend yourself so as to show your innocent, the lawyer may help you. Also, the lawyer is useful as concerning such conditions as collecting the evidence to proof the communal estate left out intentionally by the opposite party, fighting for the right from a legal sense as well as the inquiry on the company shares, bank deposit and stock distribution, so as to protect the rights and interests of the party involved as much as possible.
③ Disputes on the legal principle
For some cases, the case is simple, but the governance of law is complicated. The current laws fail to settle the disputes or the relevant judiciary is unable to give a definite answer to the disputes. For this kind of case, the professional marriage lawyer is needed. For instance,
The female party purchased a house prior to the marriage. The house cost 500,000 Yuan, among which the female party bore the amount of 400,000 Yuan, while the male party put up amount of 100,000 Yuan. Then both parties married each other. As conducting the divorce lawsuit, the rate of house has been up to 1,000,000 Yuan.
The female party claimed: the house was purchased on personal behalf and the house license also belonged to her, so the house shall be regarded as personal property.
The male party claimed: though the house was purchased by the female party, the male party also put up the capital. Meanwhile, the house has risen in value. Therefore, the house, including the increased value, shall be divided as communal estate.
I will not further the specific governance of law concerning this case. It is a case with great controversy. Though the case is simple, the governance of law is complicated. So, engaging a lawyer is recommended.
④Provided with the intention to conduct the mediation
99% of the parties involved are unwilling to go to the law. So it is same for the parties who involved in divorce cases. It is a satisfied result for both parties if the lawyer could mediate between them so as to reach an agreement accepted by both parties.
Even though the possibility is slight, it does exist. According to the calculation, the successful medication before the lawsuit accounts for 10%. Therefore, it is helpful to engage a lawyer to conduct the medication for the parties involved who are unwilling to file the lawsuits before the court, even though the chance is small.
Part IX: What is the method to sign the contract for the engagement of marriage-related lawyers?
Misunderstanding is the major reason for the arguments between the marriage-related lawyer and the party involved. Such misunderstandings shall be cleared out as engaging a lawyer. However, due to various reasons such as the lawyers are afraid of offending the clients or vice versa, the misunderstandings are not eliminated at the very beginning. So, as conducting the specific cases, the conflicting and arguments occur.
In a bid to achieve our work better, I’d like to point out something that needs to be highlighted as reaching the contract by and between the lawyer and the client.
The following contract is made on the basis of the contract model of Shanghai Judicial Bureau. Now let’s make a review on it:
This contract mainly covers the following factors:
The profile of both parties herein: the lawyer shall handle the case on behalf of the law office rather than personally. Of course, it’s only a formality. As engaging the marriage-related lawyer, the party involved attaches much more importance on the lawyer rather than the law office.
Lawyer Engagement Contract
(2005) XLHFMZ No.__
(Interpretation :) The case No.__ facilitates the law office to look up the file of documents.
Due to the divorce disputes with_______,（hereinafter referred as party A）engages the lawyer of Shanghai X X Law Firm（hereinafter referred to as party B）as the representative thereof for the medication and appearance. The following terms and conditions are made by and between both parties after negotiation and shall be fulfilled:
I. Party B, authorized by party A, appointed lawyer X X (hereinafter referred to as attorney) as the litigation attorney of party A for handling the divorce disputes between party A and _______.
(Interpretation:) The profile of both parties herein: The lawyer shall handle the case on behalf of the law office rather than personally. Of course, it’s only a formality. As engaging the marriage-related lawyer, the party involved attaches much more importance on the lawyer rather than the law office.
II. Power of attorney: regular attorney
(Interpretation) Divorce disputes are part of cases that have close relation with personal rights. Therefore, the personal relation shall not be represented according to the law. For instance, in a marriage related case, the special attorney is only applicable to the party involved who has made the notarized authorization abroad or unless otherwise specified particularly, while for the economic cases, special representation is prevalence. The special representation refers to the attorney is entitled to make the acknowledgment, renounce, medication for the party involved or reach the medication and a counter charger, etc. However, for the divorce cases, only regular power of attorney is allowable. Legal documents shall be prepared in case the party involved needs to give more authorizations to the attorney.
III. The attorney shall be responsible for the party A conscientiously and safeguard the legal rights & interests thereof according to the law. In case the appearance is unavailable, the attorney shall assign other lawyer to take the place thereof. Such alternation shall be approved by Party A in advance.
(Interpretation): Generally speaking, the attorney shall appear in court in person. However, the attorney maybe replaced unless otherwise approved by the client or in case of the force majeure such as serious illness, death and contingency. In other words, two conditions are needed for the alternation of lawyer:
First: force majeure occurred such as the attorney was dead or suffered from serious illness. Regular conflicting in court or busy schedules shall not comprise the reason for the alternation.
Second: the attorney alternation shall be authorized by the client. In case the former attorney is not available due to force majeure, the client is always understanding and reasonable in most cases and confides in the new lawyer referred by the former attorney. If the alternation is not approved by the client, the client shall make the negotiation with the former attorney or the law firm where the former attorney worked for the return of part or entire attorney fees.
IV. Party A shall explain the truth of the case to the attorney and relevant evidence hereto. Party B is entitled to terminate the acting service in case the evidences offered by party A are fake and the fees charged shall not be returned.
(Interpretation): From my point of view, it is impossible for the party involved to tell all of the truth to the lawyer, especially in marriage-related cases, while the lawyer can not be tolerant of been deceived by the party involved. One hand, the lawyer may be unhappy personally, on the other hand, such action may cause the lawyer to terminate the contract unilaterally. For instance, last year I worked as the attorney for a divorce case. I asked the party involved whether the deposit was available in Construction Bank. The party involved firmly claimed that there was no deposit in the bank. As opening a court session, the attorney of opposite party showed the evidence that there were more than 140,000 Yuan deposited in the bank when the martial relation was kept. The account was rescinded before two months of the divorce lawsuit. In view of covering up, the attorney of the opposite party looked into the party involved for hiding of communal estate in accordance with the article 47 of the Marriage Law. Meanwhile, the judge thought the party involved was incited by me. So I told the party involved we would not have been disadvantageous if I was told the truth.
V. In accordance with the contract, Party A shall pay party B acting fees of _____Yuan, such expenses for traffic, inquiry, post and business trip shall be paid as per the receipt.
(Interpretation): Generally speaking we charge 5000 Yuan from our clients as the basic fees which means no matter big or small cases, such fees must be charged. If the amount of disputed objectives surpassed 500,000 Yuan, we will charge 1% of the surpassed part further. In addition, such fees concerning the traffic, inquiry, and post shall be paid by the party involved. Previously we will bear the traffic fees ourselves, but due to the larger spending recently, we have to charge the traffic fees.
VI. The modification of the contract shall be made in writing in case such modification is put forward by ant party thereof.
(Interpretation:) As the contract was made, the articles thereof shall be followed. The medication shall be agreed by both parties in writing.
VII. The contract shall be effective as signed by and between party A and party B. The term of validity ranges from the effective date of contract to the formulation of mediation agreement（sentence, medication and rescinding of lawsuit）
(Interpretation): The party involved shall know that the duty of the attorney is not ended until the mediation or first instance is over. Therefore, it dose not mean that the duty of attorney is completed when the divorce is realized. If you want to authorize the attorney to file a lawsuit for you against, you have to re-pay the fees for the attorney. Maybe the attorney will give you a favorable price for the second lawsuit. This could be negotiated by both parties.
VIII. This contract shall be made out in two originals; both party A and party B shall hold one of the two, which is entitled with equal validity.
(Interpretation): The contract shall be made in two originals, which are kept by the attorney and the party involved respectively. There are two items the party involved shall ask from the attorney: one, the contract; two: receipt for acting fees
IX. The articles that could further the friendship of both parties: (these articles are written down according to the actual conditions of the legal cases)
1. In case the party involved needs to confer with the attorney for the relevant case, such negotiation could be carried out at the law firm or the venue where the attorney appointed.
2. The acting scope of the attorney shall not cover the disputes among the parties involved and other personnel involved with the case. Such disputes include (quarrel, reselling of the house and hand-play).
3. 1000 Yuan shall be paid to the attorney separately in case such evaluations as housing evaluation, household properties checking, and property evaluated by the court.
4. The party involved can contact the lawyer through the phone number: 021-1234 5678 at the business hours, so that the misunderstanding could be avoided when the attorney failed to answer the phone due to participation in the court hearing.
5. If the party involved needs to offer the witness to the attorney, he or she shall go to the law firm to take the witness down in writing expect for such special conditions as having to take care of the children, patients and the seniors.
6. As negotiating with opposite party, the venue shall be selected in such public place as law firm, teahouse and café rather than the place where the party involved lived. In addition, the fees needed for negotiation such as refreshment and coffee fees shall be paid by the party involved.
7. In a bid to ensure timely delivery, the attorney shall adopt EMS for domestic delivery or UPS for international delivery (including Hang Kong, Macao and Taiwan) as submitting the documents to the courts or other relevant authority. In case objection is forwarded by the party involved, the registered letter shall be adopted. Also, the attorney does not recommend the delivery via surface mail.
8. Both the attorney and the party involved shall understand with each other, so as to facilitate the process of the case.
9. The party involved may inquire the process of the case via the case handling network system or make an inquiry to the assistant of the attorney.
Party A:
Address:
Tel:：
Zip code:
July 20, 2005
Party B: Shanghai X X Law Firm
Address:
Tel: 021-1234 5678 Fax: 021-1234 5678
Zip code:
July 20, 2005
Part X: What should be done to engage a marriage-related lawyer
In Shanghai engaging a lawyer as going to law is not only a vogue but also the need to safeguard the interests and rights of the party involved.
There are only two pursuits through one’s life: love and enterprise. For many people, love is more important than enterprise. As one person involved with the divorce crisis, what he/she has to face includes the mental suffering from leaving the spouse and the disputes concerning the distribution of property after divorce. Therefore, an experienced lawyer will play a vital role as regarding to deal with such divorce crisis.
It seems that the marriage-related case is simple; in fact it’s wrong. Maybe for a judge, a marriage-related case is quite common but for the party involved, the divorce may affect the whole lifetime. Therefore, it is very important for the party involved to engage a right lawyer. For the lawyer, he/she shall pay much more attention to the marriage-related case than the regular economic cases.
Some insiders may think the handling of divorce case is simple, so it is the work of inexperienced lawyer. Actually this kind of view is incorrect. Just like other laws, the marriage law is also profound, so, an excellent lawyer shall cover both rich occupational activities and good psychological quality. The Marriage Law comprises 51 articles, covering seven aspects such as the handling of communal estate & debt, confirmation of individual properties, financial assistance, compensation as making the divorce, and the property control as making the divorce. Also, each aspect could be divided into sub-aspects which shall be studied continuously so as to appreciate the boundless profound.
Realistically, an excellent lawyer shall include following aspects:
① Age: The lawyer should be married and have children so that he or she could deeply understand the various aspects of the marriage, while the unmarried cannot be affected by the delicate variation between the couple, so unmarried lawyer is short of the experience for the marriage-related cases.
② Experience: “The older the better” is feasible for some occupations which including the profession of lawyer. If a lawyer is equipped with rich experience on the marriage-related cases, it’s easier for the lawyer to snap the key point of the case, so as to yield twice the result with half the effort. Generally speaking, a qualified lawyer shall be provide with at least three years of related experience and engaged in over 100 cases.
③. Mental quality: For instance, the divorce case is not only a verbal battle but a psychological war as well. The psychological confrontation is existed throughout each link of the divorce process. Therefore, a good mental adjustment is helpful for the process of the divorce. A lawyer who is easy to be agitated is unable to handle the process of the case smoothly.
④ Attitude: A great man said: “earnest” is essential for dealing with cases. So is the same for the profession of lawyer. A well-known lawyer may not do better than a nameless one if less energy is put into the cases. Therefore, the attitude of a lawyer is crucial for the handling of the case. |
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