While it is possible to pursue a divorce without an attorney to represent you, legal issues involving family and children can often get heated, and complex, even out of control, very quickly. An experienced family law attorney can typically foresee and warn you about potential complications that often occur to better prepare you to avoid problems or to respond positively to those events should they occur in your case.
Everyone is familiar with the old adage attributed to Abraham Lincoln, “He who represents himself has a fool for a client.” It has also been said that representing yourself is like removing your own appendix: it is technically possible, but is ill advised—and always painful! During a divorce or family legal challenge, emotions run incredibly high. Keeping focus on an objective strategy and on a logical plan to achieve what you want is VERY difficult in these circumstances. You are naturally self-interested, which makes objectivity nearly impossible.
Even if the divorce is “amicable,” the parties involved are bound to run the gamut of emotions from anger to grief and everything in between. Trying to sort out the complexities of family law is difficult at the best of times, but at a time when emotions are running high, futures are being rethought/retooled, money is at stake, and children are involved, it can become an almost insurmountable task. A family lawyer can take you step-by-step through the process and help you figure out what you are legally entitled to and what is your next best strategic move. Failing to consult a lawyer, even when the divorce seems simple and straightforward, can literally cost you thousands of dollars and also add significant stress and uncertainty.
This is especially true if your soon-to-be ex-spouse has a lawyer and you don’t. You might agree to terms that seem favorable to you at the time only to realize months or years down the road that you were entitled to more than you actually received. By that time it’s too late to do anything about it. A common mistake is that a layperson will not realize that the divorce Complaint needs to specifically address the distribution of property, retirement plans, cars, even household goods and furnishings. Many people assume that the state will automatically just divide everything 50/50; that is almost never the case. Even a simple mistake like forgetting to record a credit card debt or not giving thought to a certain old retirement account can greatly prolong the divorce process, negatively affect your future credit rating and/or your financial well-being.
A lawyer recently consulted with a distraught individual who thought everything was covered in the divorce decree, but there was no mention of equitable distribution of the property. Shockingly, this person was not entitled to anything from the marital estate. It is humorous, but true: the only time divorce can be quick and easy is when two people lived in an apartment that neither of them still has or wants, are not bound by a lease or any contracts, haven’t lived together for five years, have no income to speak of, have no retirement accounts, own nothing of any particular value, have no children, and maybe cannot remember each other’s full names!
There is also no guarantee that you and your ex-spouse will be able to work out an agreement without professional assistance even if you had the energy and desire to attempt to do so. During divorce negotiations, all of the problems that contributed to your divorce are likely to re-emerge, which might make rational communication very difficult. Now you have to deal with two things: the “stuff” AND all the emotional baggage. It would be simply superhuman for almost any divorcing couple to successfully work out a custody arrangement for their children on their own, or to easily decide who retains possession of the house, or to agree on the division of a retirement plan, or to agree on who pays whom spousal support, without professional assistance from a family attorney.
Even if you and your soon-to-be ex were superhuman and did work out all the details of your property division on your own, trying to correctly file the documentation for a divorce yourself can also prove an insurmountable task for the layperson. Many have attempted to rightly draft and file a Divorce Decree only to have a Judge tell them that it is not correctly presented. When these unwary individuals ask the Judge why the document is not acceptable, the Judge maddeningly, but correctly, must state, “I cannot tell you because I cannot advise you legally from the bench. You will have to consult an attorney.” The requirements for an acceptable Divorce Decree can change every year, and your family law attorney is required to attend hours of annual training to be sure that he or she is in the know.
Hiring a lawyer can also greatly benefit your children. The important issues of custody, visitation, child support, and spousal support are always highly sensitive, emotionally charged subjects. There is simply so much at stake. Additionally, study after study has shown that the less children are exposed to these conflicts, the better off they are in the long run. So why not insulate the children and let the lawyers fight these battles for you. Once the dust has settled, you and your ex can explain the plan to your children.
When you are facing a divorce you need to take care of yourself emotionally and physically . . . first. You have to put on your oxygen mask first—then take care of your children—and then work VERY hard to make sure that you and your spouse can peaceable co-exist and remain available for your children, both physically and emotionally. You are going to have a lot of questions about everything from your financial future to working out complex and emotional custody agreements. And most importantly, you are going to need to start thinking about what your new future is going to look like. Trying to play lawyer probably does not contribute to these positive goals.
A good family lawyer will not only help you sift through the mire of the legal system, but will also take on that incredibly critical job helping you step back and look at the big picture. Good family lawyers help their clients focus not only on the immediate issues, but on the long-term consequences of decisions made under stress, things that perhaps no one can see when he or she is in the middle of a life-altering emotional crisis. Family lawyers are trained to help.
OK, What CAN a Good Family Law Attorney Do for me DURING MY DIVORCE
(list not exhaustive)
- Conduct a well-prepared and understandable initial interview during which the Attorney actually listens in order to determine your immediate and long-term needs.
- Continue to educate you about what has happened, what is happening in your case, and your range of expectations.
- Counsel you on your legal rights and options, as well as the cost-benefit analysis involved in every legal strategy—before it is employed.
- Move the Court and Notice the opposing party for Pendente Lite (Latin for “Pending Litigation”) relief as necessary (This is for temporary support, custody of children, and use of the marital home, among other potential temporary issues.).
- Conduct the hearing on these temporary issues to obtain a ruling from the Court if required.
- Be open to and evaluate your case for possible Alternate Dispute Resolution (ADR) options (which includes Mediation) to more efficiently and successfully bring your case to resolution.
- Oversee these ADR/Mediation efforts if they are attempted.
- Finalize ADR/Mediation agreements and submit the final Agreement to the appropriate Court if required.
- Help the client categorize assets and debts as either separate, marital, or hybrid.
- Attempt to resolve disputes regarding property division, debt allocation, division of retirement accounts, spousal support, child custody, child support, and visitation.
- Host and/or conduct a negotiation settlement conference or a judicial settlement conference to attempt global settlement outside of Court.
- If possible, prepare comprehensive Property Settlement Agreement (PSA) covering all issues involving minor children, tangible and intangible assets and marital debts.
- Draft the Complaint/Petition for divorce.
- Properly and timely file the Complaint with the Clerk of the Court.
- Draft an Answer to the Complaint if the other party filed the Complaint and ensure that it is timely filed with the Clerk.
- Assist in cases where a biological parent might want or have to relinquish parental rights.
- Determine if the client is qualified and should pursue a Protective Order.
- File to request the Protective Order if required.
- Represent client at a hearing on this issue if required.
- Prepare and propound Discovery to the opposing party to ensure knowledge of all assets and benefits available to the client.
- Answer Discovery in a timely manner if it is propounded by opposing Counsel to the client.
- Develop a theory of the case for the client based on the particular facts of the case and the applicable law.
- Gather documentation and evidence to support this theory, to include financial, academic and potentially psychological reports if needed to support your positions.
- Analyze the opposition’s perceived strategy to determine how best to counter their position and the potential evidence they will likely present.
- Interview witnesses for custody-related issues as required.
- Prepare expert witnesses for custody or financial issues as required.
- Collect evidence such as financial documents, photographs, hospital or police reports in custody, domestic violence, or child neglect/abuse cases.
- Analyze the legal issues and present realistic options for the client as well as the pros and cons of each option.
- Decide if an attempt should be made to negotiate or if litigation is the last, best approach for the client’s case.
- Set and notice a court date.
- Prepare the client (and any witnesses) for trial.
- Organize the preparation of exhibits for Court.
- File Briefs, Memoranda, and Motions with the Court to eliminate surprises presented by the opposing counsel during the trial.
- Conduct the trial.
- Afterwards make recommendations to the client as to whether or not to appeal a divorce judgment or decree.