If you and 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 the answer will depend on your particular situation.
As a general rule, the less that you have to rely on the courts to solve your problems, the more smoothly the divorce will go. But do you need a divorce lawyer? The following information will help you make an informed decision.
If you're able to work together with your spouse to resolve the legal issues, you may not need a lawyer's help. These issues include:
Working together with your spouse through the divorce process can have a lot of advantages, including:
If you and your spouse can come to terms regarding the bigger issues in your divorce, you can generally ask the court to grant you a divorce in writing. This is what is typically called an uncontested divorce.
Depending upon the state you live in, you may not even have to appear in court to have your divorce finalized, if you can show that the divorce is uncontested and you have worked everything out. However, many states do require short court hearings when minor children are involved.
If you and your spouse agree on all the terms of your divorce, you can file for an uncontested divorce without the help of a lawyer. However, it is always advisable to at least have a lawyer look through your agreement in an uncontested divorce to make sure that your rights and interests are protected. A lawyer can also make sure that your agreement is likely to be accepted by the court, and that you are not overlooking any important issues that could arise down the road.
Because of their very nature, divorces tend to stoke intense emotions.
If you do decide to hire a divorce lawyer, it's crucial that you take your time and hire the right one for your situation. Do you need an attorney to fight against your spouse in court, or one that will help you and your spouse work out an agreement together? Every situation demands a different approach.
Be sure to ask any potential attorney many questions during your consultation such as:
Lawyers are charged to be zealous advocates for their clients' interests, so you need to be sure that you make your interests clear to your attorney at the outset.
There are also alternative options to hiring a divorce lawyer in the traditional sense, such as limited-scope representation, collaborative divorce, and mediation:
As noted above, even in an uncontested divorce, it's a good idea for each party to have a lawyer at least look over the agreement to check for problems and legal risks. Many people don't realize that you can hire a lawyer to help with only certain things in your divorce such as:
When you hire a lawyer to help you with certain aspects of your divorce, it is referred to as limited-scope representation. Lawyers who offer "unbundled" services often do so at a flat fee, which is usually more cost-effective than hiring a lawyer to represent you for full-scope representation.
Keep in mind that both you and your spouse will need to hire your own lawyer as it is against the rules of professional conduct in nearly all states for a lawyer to represent two parties with conflicting interests, which is the case in a divorce. You benefit from having a lawyer who can advocate for you and is looking out for your best interests instead of staying neutral. Note that divorce lawyers often offer mediation services, and in that case may assist both you and your spouse as a third-party neutral, but the mediator cannot then go on to represent one or both of you (in most states).
In short, collaborative practice is an agreement among the spouses and attorneys not to litigate and, instead, focus on settlement. 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.
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.
Mediators also 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. Note that some people bring their lawyers to mediation, and lawyers can represent your side during mediation. A combination approach may be best in certain situations.
There are certain situations when hiring a divorce lawyer makes sense, and you should probably do it. You should probably hire an attorney if:
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 of legal representation. If you do not qualify, you may still be able to ask questions of an attorney throughout your divorce proceeding.
If you are facing a domestic violence situation, get yourself to safety and talk to a lawyer. Anyone facing domestic violence during divorce should work with a divorce lawyer.
If you fear domestic violence, 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.
Also, 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 than you need, and try to keep it below half of what is in the account. Also, file a court action for immediate spousal support.