Do I Really Need an Attorney to get a Divorce?
As an attorney who has represented hundreds of men and women in both amicable and adversarial divorces, I am often asked by a client if he or she “really needs to hire an attorney”.
This question is especially common when one spouse has already hired an attorney – and has attempted to pressure the other spouse to forgo legal representation. Often times an opposing spouse will suggest that they “only need one attorney” in order to “save money” or to “keep it friendly.” But is this really in your best interest?
After successfully handling hundreds of divorce cases across Clarkton, Waterford and Oakland County, in this article I address whether you really need an attorney in different divorce situations.
Do I Need an Attorney in an Uncontested Divorce?
In an uncontested divorce, the spouses are typically on at least civil terms, and have reached an agreement on most of the important issues – including property division and child custody and support, where applicable. Clearly you need at least one attorney to formalize the terms, file the papers and obtain the Judgment of Divorce. But do you each need an attorney – since you aren’t “fighting” over anything?
The short answer is, most likely, “yes.” Keep in mind that legally an attorney cannot represent two parties to the same case. So even though your spouse met with his or her attorney and explained the terms of the settlement the two of you reached – that attorney is still legally bound to represent your spouse’s “best interests” (and not yours).
When your spouse met with their attorney (without you present), he or she provided your spouse with important legal advice regarding the settlement – explaining both the positive and negative implications for your spouse. This is advice you were not given, meaning that the terms to which you have agreed may negatively impact you in the future. In other words, your spouse’s attorney is watching out for him or her – but not for you.
Additionally, your spouse’s attorney will ultimately be the one writing up the Judgment of Divorce – which will contain legally binding details of your divorce settlement. If you do not have your own attorney, who can review the Judgment of Divorce for you, it may contain terms that do not reflect the actual agreement you think you’ve reached.
Many scenarios exist where you could reasonably think that the Judgment of Divorce drafted by your spouse’s attorney “looks alright” – when in fact it has negative, unintended consequences for you in the long-run. For example, you may have worked out “joint custody” thinking that is good enough to allow you to move to a new home and enroll the children in a new school – only to find out after-the-fact that the joint legal custody provision you’ve agreed upon prevents either of you from unilaterally changing your child’s school.
In order to protect yourself (and protect your children) it is important to have your own attorney advise you on how the law and the proposed settlement will affect you now – and well into the future.
Do I Need an Attorney for a Private Mediation Divorce?
Some spouses jointly agree to use private mediation when ending their marriage. In a private mediation, the spouses typically mutually agree upon a third-party neutral mediator who will decide the terms of the divorce. Private mediation can be an effective way to come to mutually agreeable terms, while avoiding the costs, delays and public exposure of courtroom divorce litigation.
However, the same danger holds true for attempting to use private mediation without the advice of an experience divorce attorney. Without a lawyer to advise you of how the law applies to your situation, you may still end up agreeing to terms that are not in your best interest and/or that do not reflect what you actually thought you had agreed to.
Again, numerous scenarios exist where you could reasonably think that the Judgment of Divorce to which you agreed after mediation “looks fine” – when in fact it has negative, unintended, long-term consequences for you. For example, you may have worked out a custody arrangement that worked well at the time of the divorce. And then your circumstances change a year later, at which time you find that you cannot modify the existing parenting time schedule without the consent of the other party and/or a long and expensive legal battle.
Without the benefit of legal advice from an attorney who is protecting your interests, you could end up being stuck with a Judgment of Divorce that simply does not protect your rights (and those of children) in the long term.
Hiring an Attorney for Collaborative Divorce
For couples who genuinely want to avoid a “contested” divorce – and a costly courtroom battle – an excellent option can be choosing a Collaborative Divorce. In a Collaborative Divorce the husband and wife completely settle their entire divorce before the Complaint for Divorce is filed – with each spouse being represented by their own a collaboratively-trained attorney.
Typically in a Collaborative Divorce, each party and their respective collaboratively-trained attorneys sign a Collaborative Agreement which states that neither side will “take it to court”. If one party does decide to litigate, then the collaborative process ends and both attorneys must withdraw from the case before it goes to court. This encourages all parties to work cooperatively to reach an agreeable settlement.
In a Collaborative Divorce, during a series of meetings with both parties and their attorneys, cooperative techniques are used to address and settle each issue to the satisfaction of both spouses. Sometimes, a neutral, collaboratively-trained financial planner and/or mental health professional may also be brought in to help facilitate an agreement, where there are special issues present.
Generally, the final outcome is a complete agreement that satisfies both parties’ needs, without expense and drawn out fighting in court. Even in situations that aren’t amicable or friendly, Collaborative Divorce can enable couples to civilly work out a mutually acceptable resolution without putting on the boxing gloves. And both parties can rest assured that there will be no negative surprises down the road, because their individual rights and needs have been protected by their attorney.
Because of the complexity of Michigan’s divorce child custody law, only an experienced divorce attorney can fully explain your legal rights, and how the law may apply to your situation now and in the future. If you have a divorce or child custody matter in Waterford, Clarkston or Oakland County, call Starla Zehr today.
Starla Zehr is a collaboratively-trained, aggressive and experienced divorce attorney. Whether your divorce is contested, uncontested, mediated or collaborative, and she will skillfully negotiate to ensure that you get the best possible settlement in your divorce.