As a family attorney I am often asked, “Do I need a lawyer, or can I just do this myself…?” This question plagues almost every person who is looking to start the divorce process. The quick answer is YES. No one should attempt to begin any legal proceedings without being represented by someone trained to protect their rights. There are situations where people may feel that this is the only option available to them or that a lawyer is not worth the trouble. If you are thinking about getting a divorce think twice before you go it on your own.
In my experience, there are two reasons why a person may contemplate a pro se representation (representing themselves). First, an economic reason; the economy is down and unemployment is up across New England. People are afraid to hire a divorce attorney, as they are afraid to enter a situation where they put an attorney on retainer without being certain of what the total cost will be in the end. Second, it is the age of the internet and do-it-yourself programs. People feel that they don’t need to ask an attorney when they can ask Google. There are all types of self-help books and webpages that are available that make people feel like they can save the money associated with an attorney by simply reading up on the law a little bit and doing it themselves.
Both of these situations can be addressed if you find the right divorce attorney. Before going forward, as background, there are two types of divorce; contested and uncontested. Uncontested divorces are more common, they include situations where everything is (or can be easily) worked out between the parties. The second type of divorce, the contested divorce, is the kind of divorce we all hear about. A contested divorce still has issues that need to be worked out by the parties, and without compromise, those issues will be decided by a judge in a hearing. These divorces tend to last over a year before everything is worked out and all the issues are settled. They also tend to get ugly.
To start, if you are a party in a contested divorce, that is a divorce where there is no chance that you and the other party will come to an agreement, and you will be placing the decision making power in the hands of a judge, you NEED a lawyer. It is as simple as that. You will most likely be placing a lawyer on retainer, as there is no way to know how long, and how many court dates the case will need before it is brought to a close. On the plus side there are lawyers who will take this type of case for a reasonable hourly rate.
Let’s move on to the more common situation, a divorce that has one or two small issues, but is mostly amicable. In this type of divorce even though the parties have not decided every detail, the parties are willing to speak to each other and work toward a compromise so that the estate will be divided according to the parties’ wishes. For this type of divorce, many attorneys will agree to a flat fee one-time payment. This will save you the uneasiness of starting with a retainer and can provide a cheaper and more comfortable option for parties with financial concerns.
The second reason why people want to represent themselves in their divorce is because they can. These “do it your selfers” are only hurting themselves. There is a reason lawyers spend three years in law school learning the law and all its nuances. It is complicated. Each state, and sometimes counties within the state, have their own rules and procedure. Making a procedural mistake or not knowing the local rules could end in having your complaint continued to a new date or dismissed. Hiring an attorney will get rid of this worry as they will be familiar with all the local rules and procedures.
One of the most common mistakes made by pro se litigants is figuring out where they can file for divorce. Each state has their own jurisdictional rules that limit who can file for divorce in that court. An attorney will be familiar with all of the local rules and be able to walk you through the different requirements for each step in your process. Once you figure out where you are able to file, there is a large amount of paperwork required to even get the process started. Errors on these required documents is a common issue for parties who did not have an attorney review or prepare their paperwork. These errors lead to wasted time, money and could cause your case to be dismissed.
Once you have gotten your paperwork together, there is the issue of negotiating the breakdown of the estate. An attorney will know the rules for equitable distribution for your area and will have experience in negotiating. There are state specific rules that govern the distribution of property in your area that you may not be aware of. Don’t risk your property on an article you found on Google that may not even apply to your jurisdiction. An attorney will tell you what you can expect from the distribution and assist you in obtaining the property that you want in the divorce. In addition the other party in your divorce may have hired an attorney. If so, you may feel pressured to agree with their attorney who is looking out for the other party’s interests only. The only way for you to protect your assets and your rights is to have someone on equal footing representing your interests as well.
Next, there may have been children born as a result of the marriage. If you have children under the age of eighteen and you are going to file for a divorce, you should consult an attorney. There are different rules that apply when children are involved. There are questions of custody, placement, support and visitation. These questions can have a major impact on your life and the lives of your children. Don’t risk losing your parental rights just because you don’t want the cost of an attorney.
Once you have decided how the property will be split up and how the children will be accounted for, your agreements should be drafted into a settlement agreement or placed into the order made by the court at your divorce hearing. With an attorney to assist you, you can ensure that exactly what you want goes into that agreement. If you write it yourself, or bypass writing an agreement all together, you run the risk of agreements being forgotten or left vague. Errors or ambiguity in these arrangements can lead to further disagreements between the parties, which can require further court dates to reconcile. With an attorney by your side the first time, you can avoid further filing costs and time in court to fix agreements that should have been settled during your divorce.
The next portion of the divorce process is going to court. If you are representing yourself, this is the first time you will have to speak to a judge on your case and find out if any mistakes were made in your filing. Any mistake that you make can lead to the judge postponing the trial for another day, making you miss another day of work and possibly incur travel expenses. If you have an attorney, there is no guess work in the paperwork. Hiring an attorney will allow you to know the procedure for inside the court room: when to show up, which judge you will have, how to dress, whether or not you will need a witness, how many witnesses you may need, what documents to bring with you and how to deal with the other party. These are all questions that can be simply answered by an attorney.
In short, anyone attempting to file for divorce should speak to or hire a local family law attorney who can help them through the process. It can save you time, money and most importantly stress. An attorney will help guide the process along in the quickest way possible, while getting you the best results. Proceeding pro se can lead to a loss of property, an extended trial length and other consequences that can take additional fees or court cases to repair. Don’t leave your divorce to chance. Speak to an attorney before you file.