If you and/or your spouse have decided to end your marriage, one of the first questions you’ll have is whether you need a divorce lawyer. It’s not a simple question, and will depend primarily on your particular situation and the divorce laws of your state.
As a general rule, the less that you have to rely on the courts and divorce lawyers to solve your problems, the more smoothly the divorce will run. So, do you need a divorce lawyer? The following information will help you make an informed decision.
You May Not Need a Divorce Lawyer: Making Decisions on Your Own
If you’re able to work together with your spouse on issues such as the children, support, or property, or with the help of a neutral third-party mediator, you’ll probably turn out better in the long run.
By working together, you’ll have better control over the vital issues that will be raised during your divorce instead of leaving them up to your attorneys or the court. In addition, you’ll end up saving quite a bit of time and money by not having to hire a divorce lawyer. Also, and perhaps most importantly, children going through a divorce often have an easier transition if their parents can work out the divorce quickly.
If you and your spouse are able to come to terms regarding the bigger issues in your divorce, you can generally ask the court to grant you a divorce in writing. This has become a popular option for many couples and the court systems in many states have responded favorably. Depending upon the state you live in, you may not even have to appear in court, or hire a divorce lawyer, to have your divorce finalized if you can show that the divorce is uncontested.
Keep Tensions Low: Divorce Lawyers Often Fan the Flames
Because of their very nature, divorces tend to stoke intense emotions. However, sometimes hiring a divorce lawyer may not give you the solution you’re looking for and could even further exacerbate the emotional anguish.
If you do decide to hire a divorce lawyer, it’s important that you take your time and hire the right one for your situation. Be sure to ask any potential attorney many questions during your consultation. For example, would your attorney support a decision to seek settlement outside of court, or does your attorney have a track record of battling out even the most minor issues in front of a judge? Lawyers are charged to be the zealous advocate for their client’s interests, so you need to be sure that you make your interests clear to your attorney at the outset.
Some divorce lawyers take the zealous advocacy too far, often fighting battles for their client that seem trivial to all but the attorney. If your spouse has hired such a lawyer, you may need to fight fire with fire instead of simply giving up. When this happens, your divorce may end up turning ugly and lasting quite some time. You and your spouse may end up running out of money for your attorneys and could quite possibly end up back at the settlement table.
What can make these divorces even worse is if there are children involved. Indeed, many sources now find that a child’s sense of security often goes down in direct correlation to how long a divorce proceeding lasts. In addition, it often appears that the longer a divorce lasts, the longer it will take to develop a good relationship with your child when the proceeding is over.
If You Lawyer Up, Get Your Own Attorney (In Most Cases)
In general, a couple that is seeking a divorce cannot use the same attorney. This is because of the many ethical rules that an attorney must abide by during his law practice. However, joint representation may be allowed when:
- The spouses agree on the major issues in the divorce;
- The spouses are confident that they will be able to resolve the minor issues;
- The spouses are informed and understand that the divorce lawyer will not be able to fully represent both of them during the divorce;
- The spouses have agreed to the joint representation in writing; and
- The spouses just want the lawyer to draw up the necessary paperwork.
There are a few occasions where joint representation will often work at the start of a divorce, but later on an issue develops that the spouses fundamentally disagree on. When this happens, the attorney that is representing both spouses must transfer at least one client (and often both clients) to other counsel.
In short, collaborative practice is an agreement among the spouses and attorneys to not litigate and instead try to settle. Generally speaking, collaborative practice lawyers will only agree to represent a client when the other side has also hired, or agrees to hire, a collaborative practice attorney.
In addition, when both spouses have hired their attorneys, an agreement must usually be signed that states that if a settlement cannot be reached and the divorce is headed towards litigation, the spouses must find new attorneys. Such an agreement negates any financial incentives for attorneys to prolong discussions or push for litigation and generally expedites settlement.
When You May Need a Divorce Lawyer
There are certain situations when hiring a divorce lawyer makes sense and you should probably do it. If there’s a problem with abuse, for instance, you should probably hire an attorney. Also, if you think your spouse is lying about certain issues or being vindictive, you may want to hire an attorney that can help you cope with the situation and also protect your interests.
Generally speaking, you probably should hire an attorney if your spouse has. Especially if your divorce involves children or complicated financial issues, if can be hard to deal with these complex and emotional issues without representation.
If you’re not financially able to hire a divorce lawyer, you should contact your local legal aid office or a local bar association. You may be able to qualify to get free or reduced costs legal representation. If you do not qualify, you may still be able to ask questions of an attorney throughout your divorce proceeding.
If you think that your spouse may harm you or your children, or take your property, you should take out a temporary restraining order immediately and take yourself and your children to a safe place. If you take your children away for their safety without getting a temporary restraining order, your spouse may accuse you of kidnapping.
In addition, if you need money in order to get to safety, you can take money out of any joint accounts that you have with your spouse. However, be sure not to take more out that you need, and try to keep it below half of what is in the account. Also, file a court action for immediate spousal support.
Mediators are trained at getting both sides to set aside emotions and focus down on the facts that are essential to a successful divorce. Unlike lawyers, mediators have the advantage of working with both spouses at the same time, which can cut down on unnecessary communication delay. Lastly, mediators have the advantage that they are not advocating for either side. Because of this, mediators can often reach successful settlements in divorce cases much faster than lawyers.
Do You Need a Divorce Lawyer? Talk to One and Find Out Your Legal Needs
If you’ve read this and you’re still asking yourself “do I need a divorce lawyer?” the answer may be yes. With so much at stake — particularly if children are involved — a lawyer will be able to provide you with clear answers to your important questions about property distribution, child support, and more. Start the dissolution process, or at least get a sense of whether you need an attorney’s help, by calling an experienced divorce attorney near you.