When You Can Keep Lawyers Out of Divorce and When You Should Hire One

Posted by Steven D. Eversole | Jul 12, 2005 | 0 Comments

How to get divorced without using a lawyer — and when you might really need one.

You probably know of people who suffered the torments of hell going through divorce, and you also probably know people who pulled it off without much fuss. Why are some divorces sensible and others catastrophic?

The answer can depend, to a surprising extent, on just one factor: how much you rely on lawyers and courts to resolve troublesome issues. The less you use the court, the less cost and heartache, and, in many cases, the better quality of the final result. But how do you avoid courts and lawyers?

Make Decisions by Yourselves

In theory, at least, it's simple: You do best if you work out thorny issues yourselves, with help from a neutral third person, such as a mediator, if you need it. You don't let lawyers haggle over such vital matters as how your children will be raised, what happens to the family home, and how your property will be divided. If you can work these issues out yourselves — and many, if not most, couples can — you will save yourselves time, money, and anguish. More important, you will spare your children the ugly spectacle of extended parental fights, helping them come through the divorce as undamaged as possible.

If you are able to solve the big questions of children, money, and property, you need to ask the court, in writing, to grant a divorce. In many states, you don't even have to appear in court. Many courts now make it relatively easy for people to handle the whole process without a lawyer.

But first, you've got to tackle those big questions. Can you and your spouse — someone you may not feel much like cooperating with at the moment — do it on your own? A surprising number of divorcing couples are eventually able to come to terms without outside assistance.

If You Fear Violence

If you fear that your spouse might harm you or your children or abscond with your property, take action immediately. Move to a safe place, and, if necessary, get a temporary restraining order to keep the spouse away.

Some people may advise you to close joint bank and credit card accounts, but this could be held against you during future court proceedings. Since joint bank and credit accounts are usually viewed as joint property, your future ex may accuse you of fraud or theft and a judge may agree, despite the fact that violence is raised as an issue.

Your best bet is to take the amount of money you realistically need (you do have this right, but try not to take more than half of what's there unless you absolutely have to), plus some extra for emergencies, and immediately file an action in court for support.

How Lawyers Fan the Flames

To an emotionally distraught or angry person, turning all the details and hassle of a divorce over to a lawyer may seem like a perfect solution. Unfortunately, it can turn out to be a deal with the devil. Most observers — and people who have been through an acrimonious divorce — agree that lawyers frequently make things worse, not better.

This happens because all lawyers operate under a prime directive: the zealous pursuit of their clients' interests. One lawyer can't fully represent both divorcing spouses, because each spouse's best interests are different. So, when one spouse brings a lawyer into a divorce, the other usually does likewise. There may even be a third lawyer to represent the children if there is a custody dispute. And then it can get ugly. When two or more lawyers are fighting for their clients' interests, the battle can go on and on, intensifying in passion, until the clients run out of money and limp to the settlement table.

But, if there are children, the fight depletes not only your pocketbook but also your children's sense of security and self-esteem. And, once the legal fight is over, trying to establish normal ongoing relationships between both parents and the children through a flexible custody and visitation arrangement can be very difficult.

When a Couple Can Use One Lawyer

There's an exception to the rule that no one lawyer may work for both divorcing spouses (who are assumed to have different, if not conflicting, interests). This is allowed when:

  • the clients have agreed on major issues
  • the clients are confident they can work out the minor issues
  • the clients understand that the lawyer cannot fully represent both under the circumstances
  • the clients have agreed to this in writing, and
  • the clients just want the lawyer to do the paperwork.

However, if a disagreement arises between the couple, the lawyer ethically has to transfer at least one client to another lawyer. The lawyer may have to transfer both clients to other lawyers if the lawyer has learned some things about the couple that make it unfair for him to represent one of them.
How to Keep Lawyers Civil

If you and your spouses do hire lawyers, you have the power to stop your lawyer from engaging in lengthy, expensive arguments with your spouse's attorney. Simply tell him or her to stop and explain that a combative approach does not suit your or your children's needs. Most lawyers would rather have a satisfied client than feed their ego by fighting the other side's attorney. Better still, try to hire a lawyer who'll work to minimize conflict with the other side from the start.

Some family lawyers are also trying a new method called “collaborative law,” in which the clients and lawyers agree that they will not go to court but will share information voluntarily and work cooperatively toward a settlement. Collaborative lawyers will take cases only where the other spouse has also hired a collaborative lawyer, and the lawyers sign an agreement that, if the case can't be settled, the parties have to hire another lawyer to do the litigation. This removes the lawyers' financial incentive to go to court and encourages everyone to settle earlier.

When to Hire a Lawyer

It makes a lot of sense to hire a lawyer if there is a real problem with abuse — spousal, child, sexual, or substance. In that situation, a lawyer may help you get the arrangement you need to protect yourself and the children, if there are any.

It can also make sense to hire a lawyer if your spouse is acting dishonestly or vindictively and you just can't cope with it. In that case, you may need someone to protect your interests.

It's also prudent to hire a lawyer if your spouse has an attorney. This is especially true if you have children or are facing complicated financial issues. It could be difficult and emotionally intimidating to go head to head with a seasoned pro.

If you can't afford a lawyer, consider calling your local legal aid office. If you qualify financially, a lawyer will at a minimum discuss the legal aspects of your case with you and may continue to answer questions on an ongoing basis during your proceedings. If the legal aid attorney's caseload permits, he or she may take your case, usually at little or no cost. Also, ask if the legal aid office has a pro bono program. The legal aid office may have a list of private attorneys that are willing to take on cases recommended by legal aid. These services are also at little or no cost.

If you don't qualify for legal services or pro bono help, you'll have to shop around for someone to represent you. For more guidance, see How to Find an Excellent Lawyer .

How Mediation Can Help

Mediators help you and your spouse get over the emotional barriers to negotiation and help you fashion a sensible divorce agreement that meets the both of your needs. Unlike lawyers, mediators work with both spouses at the same time. They don't represent the individual spouses' interests, the way a lawyer does. Instead, mediators facilitate an ongoing negotiation between the spouses that in most cases results in an agreement satisfactory to both sides. For more information, see Nolo's articles on Divorce Mediation.

Copyright 2005 Nolo

About the Author

Steven D. Eversole

J.D., Samford University's Cumberland School of Law, Birmingham, Alabama B.A., University of Alabama, Tuscaloosa, Alabama


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