How to Decide if you Need an Attorney

How to decide if you need an attorney

Attorney

Also known as lawyer, a legal professional who is trained and licensed to provide legal advice and representation to one individual (or one party) in a divorce, separation or other family law matter.

One of the fundamental decisions you'll face during this process is whether or not to hire an attorney.

Ultimately, in a divorce, you will make settlement decisions based on three factors:

• The facts – you have to understand what you have or owe and what the implications are
• The law – an understanding of what you have a right to or may be obligated to do
• And then what feels right to you

No matter what process you are in, you will have to consider these elements to come to resolution.  And everyone values and weighs these elements differently.  Some people may not care what a court would do in a particular situation, they can follow their instincts and go with what feels right.  Other people believe it’s important to follow the law strictly and do just what a Court would do in the resolutions. And some people take a mixed approach – maybe they want to follow the law on something like division of marital assets, like retirement accounts, but are open to compromises that follow feelings more on something like co-parenting.  However you balance these elements, you need to understand the law.

So the primary question in deciding whether or not you need an attorney, is “How confident you are that you can learn, understand and weigh the legal implications of your decisions?”

For many, this is a difficult decision.  Some statistics show that over half of all divorces are filed by individuals who are operating without an attorney. If you decide to go that route, you are not alone. But how will you know?

The complexity of your situation, the level of cooperation between you and your spouse, and your comfort with legal processes all may influence this decision.

Specific Considerations

There are some common situations that often support hiring an attorney:

• Financial Complexity. If your assets include real estate, investments, businesses, or significant debts, you want to clearly understand the law.
• Child Custody Disputes. If you and your spouse cannot work together on a co-parenting arrangement or if you have concerns about your spouse’s parenting ability, you may need legal guidance.
• Spousal Maintenance/Alimony. Spousal support disputes can be emotionally and financially taxing. Legal expertise can be helpful in negotiating the intricacies of these financial arrangements, ensuring your rights and financial well-being are protected.
• Legal Advice. If you don’t feel like you have enough of an understanding of the law or how to file your papers (or even what papers are needed), you may need to consult with an attorney.  Many courts offer free guides on the law, have a Self Help Desk, or a clerk or volunteer attorney available to answer your questions. But, if that isn’t enough, you might need an attorney of your own.
• Special Circumstances. If you are looking to appeal a ruling, if you have been charged with a crime, or if you would like to include other claims in your divorce (like defamation, assault, or misrepresentation), you need to have a clear understanding of the law and an attorney may help.
• If you cannot make decisions for yourself.  Sometimes there is a power differential in a relationship or abuse and one party needs extra protection. If you ever don’t feel safe, you don’t feel you can make decisions in your own best interest without help, or if you need an order for protection or restraining order, you should consider legal support.

On the other hand, you may not need a lawyer

• You feel confident talking through all the elements of the divorce and can negotiate with your spouse on resolutions.
• You understand your situation well enough to explain it to a judge if needed.
• You are organized, keep accurate records or know where to find them and fully understand all of the elements of your financial situation.
• You have time to prepare papers, make copies, learn the required steps, file papers with the court, do legal research, and attend court hearings.
• If you are in a court-based process, you have time to respond (right away) to papers you receive from the other party and you understand how to respond and advocate for yourself.
• Your case is relatively simple and your spouse is unlikely to argue against what you want.
• And you will need to be able to comfortably read state laws and court rules and understand what you have read so you can navigate the process without an attorney.

Think of a lawyer as essentially your "friend" at the negotiation table or guide through the process.  He or she is there to support you, provide legal advice, answer your questions, and make sure you are comfortable with the resolutions moving forward.  An attorney can argue for outcomes in your favor if you are in court or quietly advise you from the sidelines.

Steps to Decide on Having Legal Representation or Not

First, assess the complexity of your divorce. If your situation involves substantial assets, intricate financial arrangements, or contentious issues such as child custody, seeking legal representation is often advisable. If you are unsure of the assets you have or worry you don’t have the knowledge or experience necessary to work through all the decisions in a divorce, you should talk to an attorney. An attorney can provide invaluable guidance in navigating the legal details and ensuring your rights and interests are safeguarded throughout the process.

Additionally, consider the level of cooperation between you and your spouse. While an amicable divorce may seem straightforward, unexpected challenges can arise, particularly when it comes to dividing assets and determining support arrangements. Even in seemingly harmonious situations, having legal counsel may offer peace of mind and prevent potential disputes from escalating. If either party has mental health concerns, operating without an attorney may be unwise.

You should also reflect on your comfort level with legal processes. Divorce proceedings may include substantial paperwork, deadlines, and negotiations, which can be overwhelming without proper legal guidance. An attorney can alleviate the burden by handling the paperwork, representing your interests in negotiations, and providing clarity on your rights and obligations under the law. You should also consider how important you feel the law is on your resolutions. Do you want to fully understand how a Court may address a particular issue? If so, then an attorney may be helpful to analyze the law and how it impacts your potential resolutions. If you feel like you can land on resolutions that you can live with moving forward regardless of legal insight, then you may not need legal representation.

If there is a power differential in your relationship you may need an attorney to help you navigate the process. If you don't feel comfortable speaking up for yourself or advocating for your interests, an attorney can help protect you. If you are afraid of your spouse or feel intimidated at times, you may feel more comfortable with legal representation. And if you are concerned your spouse is hiding information or won't be forthcoming in the process, you should seriously consider working with an attorney.

Next, if you are not sure if you need or want a lawyer, it may make sense to talk to some and explore the options.  Many lawyers offer free consultations or will meet with you for a small fee just to get to know them. Schedule a consultation or two with a family lawyer who specializes in divorce and works in your geographic region. This initial meeting will allow you to discuss your case's specifics and receive valuable insights into the legal aspects and potential challenges you may face.

Logistically, even if you think you may not need legal representation, it may be helpful to use a lawyer for some limited purposes. Lawyers may work with you on a limited scope – to advise on a particular question or a discreet part of your situation. For example, even if you and your spouse are in full agreement, you may want to hire attorneys to draft and review your agreement and make sure all the details are clearly and accurately presented to the Court. Or an attorney may only be needed for one of you who may feel less confident or want legal support more than the other who proceeds unrepresented. A lawyer may also only be hired for a specific task like dividing retirement or transferring title on real estate. Keep in mind the many unique ways a lawyer can help you in the divorce process. And know if you hire a lawyer in a limited capacity, you can always expand your representation if your needs increase.

Ultimately, the decision to hire an attorney in a divorce is a highly personal one that should be based on a thorough assessment of your individual circumstances.While legal representation incurs expenses, the peace of mind and protection it affords throughout the divorce process can be invaluable in securing a fair and equitable outcome. If you find yourself uncertain or overwhelmed by the complexities of divorce, consulting with a qualified attorney can provide clarity and guidance tailored to your specific needs.

See the PartWise quiz to help you determine if you need an attorney.