Can You Do It Yourself?
You are not required to have a lawyer for a divorce. Actually, most divorces are handled without a lawyer or with a lawyer for only one side. Pro se is Latin for “by yourself.” A pro se divorce is a do-it-yourself divorce. Can you do it yourself or do you need to hire a lawyer? That depends on a number of factors, like how complicated your divorce is and the resources you have available for legal fees. You first need to weigh the costs and benefits of using a lawyer.
By all means, hire a lawyer if you can afford one. There are many benefits to having a good lawyer on your side to guide and protect you:
- You will know that things are done correctly in your case.
- You can stop worrying about your case and let your lawyer start worrying about it.
- Your lawyer will have the education, experience, and skill to handle the job.
- Your lawyer will know the law, the cases, and the rules of court.
- Your lawyer has dealt with the court before and will be comfortable in the courtroom.
- Your lawyer can negotiate for you.
- A lawyer can protect you and help you reach a fair settlement in your case.
- Your lawyer can prepare a settlement agreement for you.
- Your lawyer can keep track of court deadlines and guide you through the divorce process.
- Judges are lawyers and speak the same language as your lawyer.
- You may get more respect from the judge and your spouse’s attorney if you have a lawyer.
- A lawyer will know what to do if complications arise in your case.
There are also downsides to using a lawyer, and there are costs you’ll have as well. And I’m not just talking about money, as you’ll see.
Some lawyers can increase the conflict in your case. A lot of people believe in fighting fire with fire. If your spouse hires a lawyer with a reputation for being overly aggressive, difficult, or unreasonable, then you might be tempted to hire a similar type of attorney. Although this has little effect on the outcome of your case, it will cost you a lot more money. It’s better to fight fire with water.
Tip Sometimes when it comes to divorces or lawsuits, it’s better to fight fire with . . . water.
The main cost in a divorce is legal fees. Lawyers charge by the hour for their work. Depending on where you live, the cost could be anywhere from $150 to over $500 an hour.
Many people look for the lawyer who charges the least per hour, thinking they are getting a bargain. But the higher fees usually mean that the lawyer has more experience and, having handled many cases like yours before, can do it faster than the lawyer with the lower hourly fee. So, you need to think about the overall cost of your case and not just the hourly rate.
How much will a divorce cost you in legal fees? It will cost about the same as a new car. But that new car may be a Hyundai or it may be a Porsche. Even your attorney will be guessing when they give you an estimate of legal fees. That’s because there are too many unknowns and too many things that are not within your control, like the judge, your spouse, and your spouse’s attorney.
Since the total cost is unknown, divorce attorneys require a retainer, which is an up-front payment. A typical retainer is $5,000. The retainer is placed in the attorney’s trust account, and they bill against it at their hourly rate plus the costs mentioned above. If the lawyer is able to resolve your case within the price of the retainer, any balance remaining in the trust will be refunded to you. If your case costs more than $5,000, the attorney will ask you for more money.
Note Your divorce attorney will likely require you to pay an up-front fee called a retainer. Typically, the retainer is $5,000. The lawyer will draw from the retainer to pay your bills until it runs out or the costs are met. Any balance remaining in the trust account will be refunded to you.
It will also pay to get a little perspective on your case. You don’t want to spend $5,000 in legal fees fighting over $5,000 in marital assets. The larger the stakes, the more the legal costs can be justified.
The divorce attorney will give you a fee agreement that sets out all this in writing. You both sign the agreement.
It is possible to recoup some of your legal fees and costs from your spouse, either in settlement or at trial. You would either negotiate this with your spouse as part of your settlement agreement or ask the court to award you attorney fees. At trial, the judge considers the resources and needs of each party. However, the court-ordered attorney fees rarely cover the full amount you have advanced.
While legal fees will be the most expensive part of your divorce, there are other costs as well. You will have to pay fees to the court for filing your divorce and other pleadings. You will have to hire a process server to serve the divorce papers to your spouse. You will have to pay for transcripts. You will have to pay for mediation. You may need expert witnesses, such as custody evaluators, appraisers, accountants, vocational rehabilitation experts, and so forth. Expert witnesses can cost thousands of dollars.
In addition to legal fees and costs, there is an emotional cost to divorce that can have a damaging impact on your finances as well. You may be unable to work and earn a living, or your income may be reduced due to the stress, depression, and time that a divorce involves. You may have to pay for therapy and medications during this time. These are the hidden costs of divorce.
If you do not use a lawyer, you will be expected to know the rules even if you do not. Don’t expect your spouse’s lawyer or the judge to give you any leeway because you are representing yourself and you are not a lawyer. If the other side finds a way to exploit your lack of knowledge and experience, it will.
Main Consideration: Simple or Complex Divorce?
First, let’s discuss the difference between an uncontested divorce and a contested divorce.
An uncontested divorce means that you and your spouse have agreed on everything and there are no disputes between the two of you for the judge to decide on. In many cases, you can make a signed, written agreement that spells everything out. The court will reference and incorporate this into the divorce order. The uncontested divorce hearing only takes from fifteen to twenty minutes. This is the kind of divorce you want if you can get it. The hardest part is getting the agreement.
You should be able to handle an uncontested divorce yourself, especially if you go to the courthouse and watch a few of them. If you do not have the time, energy, or tolerance for frustration that this may require, then, by all means, hire a lawyer to do it for you.
Tip Get an uncontested divorce if at all possible. The hearing will take all of 15–20 minutes. But you’ll have to work hard to get an agreement you and your spouse can both live with.
If you cannot reach an agreement with your spouse, then you will have a contested divorce. That’s true even if there is only one issue in dispute. In a contested divorce, you have a trial and you present testimony, documents,and witnesses, and the judge decides all the issues for you. This is time consuming and expensive. You want to avoid a contested divorce if you can.
Whether or not you need a lawyer for a contested divorce case depends a lot on how simple or complex your divorce is. You can probably handle a simple divorce without a lawyer. The more complications that you have, the more you need a lawyer.
A simple divorce is usually one in which the parties have been married a short time, have no children, and have little or no marital assets or debt to divide, and one in which both make about the same amount of money. This is the sort of case that you can probably handle yourself.
Sometimes people will say to a lawyer they have a simple divorce and they have agreed on everything. But when the lawyer draws up a written agreement for them to sign, it turns out they do not agree on everything. Then things become complicated.
Complications
The following situations will make your divorce more complicated. Each of them will be discussed in more detail later in the book. If any of these issues are present in your case, you should at least think about getting a lawyer.
- High conflict:Some couples can’t even agree on what day of the week it is. If you spend all your time arguing with your spouse, you may need an attorney to help present your case to a judge.
- High stakes: The higher the stakes, the more complicated your divorce becomes, and the more you need a lawyer. The stakes can be property, alimony, or children—the highest stakes of all.
- Children:If you have children, you will have to determine legal custody, meaning who makes the long-term parenting decisions like education, medical treatment, and religious upbringing. You will have to determine physical custody, which is where the children live most of the time. You will have to determine an access schedule. There may be parenting disagreements over routines at each house or how the children are disciplined and so forth. You will have to determine child support, which is based on guidelines that involve alimony, time spent with each parent, both parents’ incomes, health costs, day care costs, and other factors. Disputes sometimes arise over each of these factors; for example, it can be difficult to ascertain the income of a business owner who controls which bills get paid and which customer invoices are collected.
- House: If you own a house, will you keep it or list it for sale? How will the proceeds be distributed? What if you owe more than the house is worth? Who will pay for it until it’s sold?
- Retirement Funds:What portion of your retirement account is marital and what portion is nonmarital? How will the marital portion be divided? How much is your retirement account worth? What happens if you are receiving retirement payments over time and you or your spouse dies?
- Alimony:Will you need spousal support? Will you have to pay spousal support? How much and for how long? Do you want it to be modifiable by the court if your circumstances change? What circumstances would cause alimony to change or be terminated? What impact will alimony have on taxes and child support?
- Domestic abuse:If domestic abuse is involved in the cause of your divorce, you will probably need the advice of an attorney.
- Business interests and investments: If you have a lot of assets to divide, or there are one or more businesses, then you should hire an attorney to help you.
- High-income earner: An attorney may be able to help you find hidden “perks,” which high-income earners sometimes have. If you are a high-income earner, an attorney may be able to help you present your finances to your spouse in a fashion that leads to settlement.
- Government employees:Government employees have special retirement accounts, health insurance, and other benefits that are somewhat complicated and often can benefit from the services of an attorney.
- Military divorce:There are special rules for military divorces regarding retirement funds and health care.
- Same-sex divorce:This is an evolving area of the law, and there are special considerations in same-sex divorces. For example, what happens when a same-sex couple marries in a state that allows them to marry and then they move to a state that does not?
- Missing spouse:You will have to make efforts to locate your spouse if they can’t be found. Then, you’ll need to file a motion for alternative service with the court and attach an affidavit of your efforts. Finally, there will be a default hearing where you alone will testify.
- Your spouse has a lawyer:If your spouse has a lawyer, that lawyer is looking out for your spouse’s interests, which are likely to be contrary to yours. A lawyer knows the law better than you do and where to place all the tricks and traps for the unwary.
A mediator is a neutral third party who tries to help you reach a settlement with your spouse so that you can sign a separation agreement and have an uncontested divorce. The mediator does not represent either side in the negotiations.
Not all states regulate who serves as mediators, so they can be lawyers, or therapists, or anyone else. A good mediator will guide both parties through a series of steps that result in a complete marital settlement agreement.
Mediation takes place with both parties present and the mediator serving in one or more sessions. It is usually done without attorneys present although the parties may have them if they wish.
Why You Should Mediate
Mediation has several advantages:
- An end to litigation: If you can settle your case in mediation, you will avoid a trial—and the related time, energy, emotion, and legal fees it involves.
- Certainty: A mediated settlement brings certainty to uncertainty. You may not get everything you want, but you control the outcome through negotiation and compromise, instead of letting a judge—a stranger to your case—tell you the outcome.
- Breaking impasses: Sometimes spouses are just unable to talk to one another or have a civil conversation. Mediation brings them together in the same room, and the mediator can act as a referee when discussions become heated. Or the mediator can become an interpreter when parties have trouble understanding one another.
- Level playing field: Mediation can level the playing field. When one party has a style that is controlling, overpowering, dominant, aggressive, or self-centered, the mediator can help the other party be heard and respected so that a fair agreement can be reached.
- Options: Judges are limited by the legislature in terms of how they can decide a case. In mediation, the parties are freer to pursue other options. The court has the power to approve and enforce their agreement even if it contains provisions that the court would not be able to order on its own. The mediator can present various options to the parties for resolving their disputes. And sometimes when the parties are talking, a workable solution falls on the table in the middle of the conversation that no one had thought of before.
- No appeals: If your case is settled in mediation, there can be no appeals. There is some evidence that parties who undertake mediated settlements are happier with the outcomes than those who litigate their cases. There are also fewer postdivorce disputes.
- Cheaper cost: Lawyers usually charge less than their normal hourly rates when they act as mediators. And that hourly fee is split between the spouses. In addition, you are sitting across the table from the other party, so you can ask questions and get immediate feedback. In traditional negotiation, you would ask your lawyer a question, who would in turn write to your spouse’s lawyer, who would then ask your spouse and write back to your lawyer, and so on. Each letter or phone call might cost $25 or $50. So, mediation may be a cost-effective way to reach an agreement.
- Faster procedure: It may take a year or longer to complete a contested divorce. There are a lot more cases filed than there are judges to try them. The system counts on a majority of cases being settled. If you try your case, your trial will be set on the next available date on the judge’s calendar. But you can make an appointment with a mediator right away.
Why You May Not Want to Mediate
Mediation also has a few disadvantages:
- No settlement: There is no guarantee that your case will settle in mediation. So, you could go through the entire mediation process and end up spending money for the mediator with nothing to show for it in the end.
- Level playing field: If you are the one who controls all the assets, you may not want a level playing field. You may want to try to use your resources to your advantage in a trial. It’s a harsh reality but true: many people don’t want to be fair with their soon-to-be ex.
- Commitment: In order for mediation to work, both parties have to be committed to it. If you are there because your spouse dragged you, it will be difficult for the mediator to help you resolve your case.
In order to file for a divorce, you have to have grounds. Grounds refer to reasons for a divorce.
It used to be that you could only get a divorce on fault grounds, such as desertion, adultery, cruelty, imprisonment, or insanity. Then, legislatures started adding no-fault grounds to the original fault grounds. California was first. New York was last. Some states would permit a divorce with no fault if there were “irreconcilable differences.” Others permitted a divorce if there was “no hope or expectation of a reconciliation.” Some just required a separation for a certain period of time. And now, some states have done away with their fault grounds altogether and have only no-fault divorces.
You should be aware, however, that even in no-fault states, fault may still make a difference. Some states, which have abolished fault as grounds for divorce, may still look at the circumstances surrounding the estrangement of the parties to determine alimony and property division. Those circumstances involve fault. And even in states where fault is not a factor that is considered in alimony and property division, evidence of fault may still persuade a judge to rule one way or the other.
Summary
Deciding whether or not to hire a lawyer or do your own divorce involves considering the costs and benefits as well as the complexity of your case. Mediation may be an attractive alternative for you. No-fault divorce has made a divorce easier to obtain in some cases, but fault may still be a factor in such cases. Next, we’ll help you find the right lawyer if you have decided you need one.