Do I need a lawyer?

Dear Gretchen:  How do I tell if I need a lawyer for my divorce?

Answer:   Start with being really honest with yourself. 

Do you have the time to devote to your case, including learning the law.  If your lawyer would spend 40 hours of time on your case from start to finish, expect that you’ll spend at least 10 times that, just to find the things and understand the things that the lawyer already knows and has at their fingertips.   And don’t expect to be able to learn enough to handle the contested issues.  If you find yourself unable to agree upon everything with your ex, and end up having to get a judge to make the decisions, expect that you’ll only be able to present the most basic of information and hope that you’ve done enough to get the judge to decide in your favor.   Just because “it’s fair” is not usually enough for you to win.  And understand that when you pay a lawyer, you’re paying for all the stuff that they can say to back up the general principle that “it’s fair”.  This is the difference between putting a band aid on a cut and putting in stitches.  If you do not have the training to put stitches in, you probably won’t try to do it.  

Have there been any accusations of violence on either side?  Or any other improper behavior?  If so, then you are in a very precarious position to try to resolve things on your own.  You are not credible when making new or counter-accusations if someone thinks it involves gaining an advantage in the divorce, and to say it on your own sometimes puts you in a bad position for other legal proceedings.  You have the right to remain silent, which means that someone else needs to do the talking for you.  That someone must be licensed to practice law, and you want them to be, because there are too many mistakes available that could get you into deep trouble.  This is the case whether you’re the alleged perpetrator or the alleged victim.  You could easily put your foot in your mouth.  Many areas of the country have options for victims to get a free attorney if you cannot afford one… this would be through a charitable organization, as the government generally does not provide the lawyers for private divorces, but the alleged perpetrator needs a lawyer also and does not get a free lawyer.  If there is an accusation of violence, both parties need a lawyer and at least one of them will be paying for the lawyer.  If you cannot find, borrow, or raise the money for one, you are highly likely to lose more than just the divorce if you try to proceed without a lawyer.   To try to handle this without a lawyer would be like the difference between putting a bandaid on a cut on your own arm, and putting stitches in.  Remember, if you do not have the training to put stitches in your arm in the first place, that’s just one hurtle, this time, even if you had the training, you’re missing the use of a hand to help get the stitches in.  You can’t work with both hands, you’re even more hampered in getting those stitches in.  You’re more likely to end up with bigger injuries if you try it yourself.  Same with trying to be your own lawyer if there have been allegations of violence.

Are you the world’s best organizer?  If you need a lawyer, being disorganized can cause the rates to raise (as the lawyer will have to do some of those things for you at their own hourly rate), but if you do not have a lawyer, being disorganized can lose your entire case for you.  I know people who were reasonably organized and cooperating with each other, but in the end the judge would not finalize the divorce because they did not see one of the steps in the self service center and missed it.  They were not divorced and had to come to me for help in getting it done.  As it was, we had to start over from the beginning because the step they missed was one of the first steps in the process.  And they found themselves paying not only for my services, but also a second set of filing fees.  They would have been better off bringing their settlement to me in the first place and letting it get properly documented and filed, doing it only once and getting it over with, rather than having to start a new waiting period from start to finish.  I often get calls from people who did not follow up the way they should, and ended up losing their retirement savings, the house, and/or huge ongoing alimony payments.  These problems are always much more expensive if you have to hire a lawyer to fix them after you’ve messed them up.  IF they can be fixed, which often they cannot be fixed once you’ve messed it up.  Being organized does not solves your problems if the law is not on your side, but even when you think you’ve got a slam dunk case on the legal issues, you can lose everything if you do not follow through properly, procedurally.   This would be like thinking you’ve done enough research to know how to stitch up a wound on your own, getting it done, and then finding out that the thread you used, because you were inexperienced at doing it, is going to cause a deeper infection.  Maybe the wound was in your own arm and the only person to suffer an infection is yourself.  But what if this person is going to be your children? 

Do you have difficult issues to negotiate that even a cooperative person would have difficulty with?  Child custody and visitation issues can be easy or they can be hard, it depends upon whether you already agree on how to raise the kids.  If you fundamentally disagree with what your ex wants to do with the kids, (i.e., they are too lenient and you believe the kids need more discipline), then it’s going to take some professional help to resolve these issues.  A lawyer can help you get into a position where you can force your ex into cooperating with a professional.  Very difficult issues can involve non-custody situations as well, such as questions about alimony or division of debts or a family –run business.   How about how to separate when the house payments take both salaries to live on?  These issues sometimes require the help of a lawyer or mediator (many lawyers also mediate, as do I), to resolve them.   To try to handle the difficult issues on your own is not like trying to simply stitch a wound on yourself… it’s more like trying to do complex surgery on yourself.  Even an experienced surgeon wouldn’t try it.  And most lawyers do not handle their own complex divorces.  It’s not because they’re so rich that they don’t mind throwing money away on an unnecessary expense while their lives are being ripped in half… and it’s not because their buddies are giving them a great discount (lawyers won’t discount the complex cases even for their good friends),  it’s because they know better.  They go to court often enough to know the damage that can be caused by someone trying to handle their own complex divorce.  If the best way to learn how to handle your own divorce is to look at what lawyers do in complex divorces, take the example of what a lawyer will do in THEIR OWN complex divorce.  They will hire another lawyer to do it for them. 

One last question:  Are you and your ex both emotionally capable of cooperating to come up with a disposition to the issues?  If not, then are you willing to lose on those issues?  About 10% of the population has some psychological problem that makes it impossible for them to negotiate or handle things in a cooperative way.  Of course this means that it makes living with them difficult, so they’ll often find themselves getting divorced unless they were lucky enough to marry an unusually obedient/acquiescent person.  And when they get divorced, there’s usually drama, unfairness, and excess pain associated with it.  If you are married to one of those people, prepare for things to get worse before they get better, but it’s worth going through to get out before they get worse at home anyways.  In situations where you or your ex are unwilling to negotiate, a divorce lawyer is needed to avoid losing everything.  Even if you and your ex don’t normally have psychological problems that prevent amicable settlement, sometimes the circumstances of a divorce can push one or the other of you over the edge.   Think of trying to perform surgery on someone who is squirming around and refusing to settle down… or every time they do settle, they screech and yank away the minute you’ve got the needle halfway through.  But worse, to keep my medical analogy going, think of this as if you’re letting your ex perform surgery on you.  They’re angry, not happy, not able to cooperate, and you’ve left yourself unprotected by trusting them to do it rather than hiring a professional.  Not a smart move when you think it through.

I know some people are worried about the anger that seems to show up whenever a lawyer is in the picture, or the money that they might have to spend on a lawyer.  As for the anger, just tell your lawyer that you want to be amicable.  If it's possible to keep it amicable, your lawyer will be able to do it, but your lawyer will also be able to protect you if your ex becomes unreasonable.  As for the money, there are ways to keep costs down, but this is a necessary expense… just as necessary as a doctor is if you develop appendicitis, and your insurance says they won’t cover it based upon some technicality.  If you do not spend the money on a lawyer, you may end up without a roof over your head.  

We’ll talk about how to keep costs down in another post.