The question of whether you need a lawyer comes down to how much you have at risk in your divorce and how much time you have. If you and your spouse have very few assets, comparable incomes, and no children, you have little to lose in handling your divorce in a do-it-yourself manner, without the assistance of an attorney. You might even choose to work solely with a mediator to help you in the process of working out all the necessary details and creating the settlement agreement. Reviewing our article on “Divorce and Finances” will help ensure that you have considered all of the assets that might be considered marital property. You may be a renter without much money in the bank but may have life insurance, retirement plans, or other assets that may not be immediately obvious to you. It is critical that you fully evaluate your financial picture if you are considering moving forward without the help of a lawyer.
A lawyer plays several roles in divorce: information provider, negotiator, advisor, and implementer. First, lawyers provide information that is not easily obtained. For instance, even in relatively simple situations, dividing property can involve legal questions. In particular, it can be difficult to identify the property that should be treated as separate property and what belongs to both of you. A lawyer can help with these determinations, so you know what you would be entitled to if the case went to court.
The range of information a lawyer can provide about handling your divorce is broad and includes issues relating to how the timing of your divorce can affect you financially. For example, you might not know that you must be married for at least ten years in order to qualify for social security spousal benefits, or that if you wait until you are fifty-five to sell the marital residence, you get a tax break. The financial impact of just having access to such information can be highly significant. You might be able to search the Internet and find the facts a lawyer would provide, but the time spent and the difficulty in ensuring that the information is accurate and relevant to your situation usually mean that it is worthwhile to talk to an expert who has most of the information you might need readily accessible.
Many people feel that they have trouble negotiating a good deal. This is even the case when they are trying to buy something, which is a situation in which they should have a great deal of power. Negotiating with a spouse can be much more difficult, especially when one or both of you find it hard to avoid rehashing what has happened in your relationship rather than focusing on the present and future. Another challenge occurs when one spouse is controlling.
Easing the difficulty people have in negotiations is one thing lawyers do well. They are less emotionally vested in a situation and therefore can view things more objectively. Lawyers also undergo training in negotiating strategies that enable them to avoid falling into traps; they can thus greatly reduce the time required to reach agreement. The fact that they are constantly involved in negotiations puts lawyers at ease when they are negotiating. That alone can increase the effectiveness of a negotiator. The bottom line is that if you are not comfortable with or skilled in negotiations, a lawyer’s help can be of great value.
A third role lawyers play is that of advisor. An experienced family law attorney will understand issues that you haven’t even thought of yet, and will be able to direct you to resources that might even help you avoid some common pitfalls. Have you gotten mental health support for your kids yet? Have you considered hiring a financial planner to help you work out a budget that you can stick to after you’ve separated? Have you considered talking to an accountant about the potential tax implications of liquidating your assets in order to divide them? While divorce lawyers obviously can’t specialize in that wide a range of issues, their experience is broad enough that they can often anticipate the problems before you can, and can advise you on where to go for help. And while we are certainly not trained therapists, most divorce lawyers will tell you that a large part of what they do every day resembles therapy—helping our clients sort through the emotional muddle and get back on their feet. A lawyer can also advise you if an unexpected problem comes up—for instance, if your spouse files for bankruptcy before you receive money due to you in a property settlement. A lawyer may be able to help you notify your spouse about the divorce if you are unable to do so. Additionally, a lawyer can advise you on how much money, if any, you should pay or receive for alimony or child support.
Finally, lawyers are also well versed in procedure. They draft documents and interact with the court. They understand the local rules and how to do what is needed in your case. State procedures, obviously, can vary widely, but there can be significant distinctions even from county to county, and a good, experienced local attorney usually understands how to manage the idiosyncrasies of the local system. The details of those documents can also be crucial—miss a filing deadline, and you may give up your right to ever ask for alimony. These are the details that you pay a lawyer to manage for you, so that you can get on with the business of getting your life back on track.
Using an attorney can make a big difference in how you fare in your divorce. Your lack of knowledge or false assumptions about the law can hurt you, and hurt you big time. If you never talk to an attorney about your spouse’s settlement proposal, or if you never have settlement papers reviewed by someone who can advocate for your interests, you could get the short end of the stick without even knowing it.
Even if you still trust your spouse, this is not a time to be foolhardy. You may be entitled to things you don’t even know about. At the same time, your spouse may be consulting with an attorney without your knowing about it, so the playing field may not be as level as you believe. Don’t assume, in other words, that your spouse’s intentions are good just because your spouse tells you that his or her offer to you is fair and equitable. You can listen, as much or as little as you care to, to what your spouse has to say, but judge the offer yourself, based on all the information you need in order to evaluate the details. We strongly recommend that you have at least one meeting with an attorney to check out your understandings with an objective, trained person.
A lot of people put off going to see a lawyer. Delaying a visit with a lawyer is usually a major mistake. It is not hard, however, to understand the reasons so many people procrastinate in consulting with an attorney. Two of the most common reasons for not going to see an attorney are denial and a fear of being overwhelmed. Denial may have psychological roots (“My marriage isn’t really all that bad—things are going to get better” or “Lawyers are scary, and I’d feel too intimidated” or “I can’t talk to a stranger about all the distress I’m having or I’ll fall apart”). Denial also may be linked to financial worries (“I can’t afford the fees that lawyers charge” or “Even though I have the money and know I need a lawyer, the lawyer is going to bleed me dry and I don’t know how to keep that from happening”). If you decide you need a lawyer, you should usually be able to find ways to surmount these psychological and financial barriers to getting legal representation for yourself.
Another reason that people don’t go talk to attorneys is a lack of understanding about when and why lawyers should be consulted (“I don’t need a lawyer right now” or “There’s nothing a lawyer could do for me that I can’t do for myself”). This reason for delay stems from a lack of familiarity with what lawyers do. Occasionally it stems from personal arrogance (“I’m sure I could do this better than someone else could”). Most people do realize, however, that lawyers have specialized knowledge and skills, but these same people may not recognize that divorce law is full of highly technical rules and traps for the unwary. The law is like poker, and maybe just as risky: if you don’t know all the rules and how to play to win, you can lose the game.
People often don’t realize that you don’t need a lawyer only when you’ve been sued or have to go to court. Properly timed legal advice can help prevent certain problems from ever arising, and properly timed legal advice can potentially reduce the dimensions of existing problems. This kind of preventive use of a lawyer can save you heartache, time, and money. If you decide you need an attorney, go see one now, as soon as possible, rather than putting off the appointment.
