Divorce: Do You Need a Lawyer?

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You probably know of people who suffered through a long and nasty divorce process - and some who pulled it off without much fuss. Why are some divorces sensible and others catastrophic?

The answer depends on various factors, including the personalities of the people involved, the importance of what's at stake, and sometimes on how much you rely on lawyers and courts to resolve troublesome issues. In general, the less you use the courts and attorneys, the less cost and heartache you'll have - and in many cases, you'll get a better final result. But how do you avoid courts and lawyers?

Make Divorce Decisions by Yourselves

In theory, at least, it's simple: You usually do best if you and your spouse work out thorny issues together, perhaps with help from a neutral third person, such as a mediator. You keep control over such vital matters as how your children will be raised, what happens to the family home, and how your property will be divided. If you and your spouse can work these issues out yourselves - and many, if not most, couples can - you will save yourselves time, money and anguish. More importantly, you will spare your children the ugly spectacle of extended parental fights, helping them come through the divorce as undamaged as possible.

If you are able to resolve the big questions of children, money and property, you then just need to ask the court, in writing, to grant a divorce. In many states, you don't even have to appear in court. Many courts now make it relatively easy for people to handle an uncontested divorce without a lawyer.

Keep Divorce Lawyers From Fanning the Flames

When you're emotionally distraught or angry, turning all the details and hassle of a divorce over to a divorce lawyer may seem like a perfect solution. Unfortunately, it doesn't always simplify things.

It's all about the lawyer you hire, so it's critically important that you find the right one. If you want a lawyer's help but you still want to keep your divorce civil, make sure you hire a lawyer who will support that approach. When you interview potential attorneys, ask them whether they feel favorable about negotiating a settlement rather than fighting it out in court. Lawyers operate under a prime directive: the zealous pursuit of their client's interests. If you make sure to let the lawyer know that your interest is in an amicable divorce, then that's what you should get.

Unfortunately, some lawyers make it a practice to be as aggressive as possible, and if your spouse finds a lawyer like that, you may have to fight fire with fire. In these cases, the battle can go on and on, intensifying in passion, until the clients run out of money and limp to the settlement table.

Worse, if there are children, the fight depletes not only your pocketbook, but also your children's sense of security. Once the legal fight is over, trying to establish a normal ongoing parenting relationship between both parents and the children can be very difficult.

How Collaborative Practice Works

Some family lawyers are trying a relatively new divorce method called "collaborative practice," in which the clients and lawyers agree that they will not go to court but will share information voluntarily and work cooperatively toward a settlement. Collaborative lawyers will take cases only where the other spouse has also hired a collaborative lawyer and the lawyers sign an agreement that, if the case can't be settled, the parties have to hire new lawyers to handle the litigation. This removes the lawyers' financial incentive to go to court and encourages everyone to settle earlier.

When to Hire a Divorce Lawyer

It makes a lot of sense to hire a lawyer if there is a real problem with abuse - spousal, child, sexual or substance abuse. In these situations, it may be impossible for the abused spouse to negotiate effectively: A lawyer can help arrange the necessary protection for an abused spouse and the children, if any. 

It can also make sense to hire a lawyer if your spouse is being dishonest or vindictive and you just can't cope with it. In that case, you may need someone to protect your interests.

Finally, it's prudent to hire a lawyer if your spouse has an attorney. This is especially true if you have children or are facing complicated financial issues. It could be difficult and emotionally intimidating to go head to head with a seasoned pro.

If you want to find a divorce lawyer online, Nolo can help. Click here to get connected with local divorce lawyers. A couple of quick steps, and you can begin reviewing potential attorneys to represent you.

If you can't afford a lawyer, consider calling your local legal aid office. If you qualify financially, a lawyer will (at a minimum) discuss the legal aspects of your case with you and may continue to answer questions on an ongoing basis during your proceedings while you represent yourself. Ask whether the legal aid office has a pro bono program. The office may have a list of private attorneys who are willing to take on cases referred by legal aid at little or no cost.

If you don't qualify for legal services or pro bono help, you'll have to shop around for someone to represent you. For more guidance, see Nolo's article on How to Find an Excellent Lawyer.

If You Fear Violence

If you fear that your spouse might harm you or your children (or abscond with your property), take action immediately. Move to a safe place, and, if necessary, get a temporary restraining order to keep your spouse away. It's very important that you also get a temporary order for custody of your children, so that you're not accused of kidnapping.

If you need money, you have the right to use your joint accounts. Take the amount of money you realistically need plus some extra for emergencies (but try not to take more than half of what's there unless you absolutely have to), and immediately file an action in court for support.

How Divorce Mediation Can Help

Mediators may be able to help you and your spouse get over the emotional barriers to negotiation and negotiate a sensible divorce agreement that meets both of your needs. Unlike lawyers, mediators work with both spouses at the same time. They don't represent the individual spouses' interests, the way a lawyer does. Instead, mediators facilitate a negotiation between the spouses that, in most cases, results in an agreement satisfactory to both sides. For more information, see the Divorce Without Court area of Nolo's website.

For information on divorce mediation, collaborative divorce, and methods to end a marriage fairly with minimum expense, see Nolo's book Divorce Without Court: A Guide to Mediation & Collaborative Divorce, by Katherine E. Stoner.

For a review of all your options and the different kinds of divorce, see Nolo's Essential Guide to Divorce, by Emily Doskow (Nolo).

Updated by: , Attorney

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