Do You Need a Divorce Attorney?
Lawyers are expensive, especially if you have kids and custody issues are at stake. But divorce is complicated. There are some scenarios where representing yourself, instead of hiring an attorney, could cost a lot more in the long run.
You probably need a divorce lawyer if…
If you fit one of these scenarios, you could likely benefit from professional legal support.
Important caveat: This decision really depends on the facts of your specific case. The only person who can truly advise you on that decision is, somewhat ironically, a divorce attorney.
One quick vocab note: A “pro per” or “pro se” is a person who represents themself in court, instead of having a lawyer represent them.
Now let’s get down to it. You probably need a divorce lawyer if…
It’s a high-conflict case
Conflict is the biggest sign that you need a lawyer. If a resolution feels out of your hands or beyond your control, it’s usually time to bring in a professional who can guide you through the process.
“First, you should take the temperature of your relationship with your co-parent,” suggests Lillie Ashworth, a family law attorney in North Carolina. “Are you getting along mostly? Do you have an overall agreement on how you're going to raise the kids?
“If you are basically on the same page, you're probably going to be fine without an attorney, so long as there's no complicated issue. But if you're not on the same page, then you may want to know what your rights are by speaking with an attorney.”
It’s a complicated case
“What is the scope of the work that you're seeking to resolve?” Ashworth asks. “And what are the complexities involved with that work?”
Here are a few questions you can ask yourself:
- Are you dealing with child support and/or division of assets?
- Do you or your co-parent have complicated incomes? (E.g., self-employment or owning a business.)
- Does your child have special needs?
- Does anyone have a complicated work schedule?
- Do you want a complicated parenting time schedule?
- Do you, your co-parent, or your children have mental or physical health issues?
- Is anyone else involved, like a therapist or Soberlink?
- Will there be any parental fitness evaluation?
“If those things are at play,” Ashworth says, “you absolutely should get an attorney.”
Mental health is an issue—on either side
If your co-parent has a mental health issue and you’re concerned it affects their parenting, you might need a lawyer. The lawyer can craft and request a structure or boundaries that keep your kids safe while still allowing time with both parents.
If you are the one with a mental illness, an attorney can help protect your privacy. “You don't want your personal health business to be a part of your case, and the best way to make sure that you're protected from unwanted disclosures is to make sure that there's an attorney there. The attorney can prevent your mental health records from coming in. You can keep the records out of the courtroom. It's hard, but you can do it.”
Ashley Chalut, a family law attorney in Michigan, says, “Personally and professionally, I view mental health situations as an obstacle, but not a complete barrier. It just means that we have to create a structure and a safe environment for you to have your children, so that you can be a successful parent,” Chalut explains.
You need child support
“You should get an attorney for child support,” says Chalut, “because even attorneys have a hard time understanding the child support manual, to be honest.”
In Michigan, Chalut explains, the child support formula is complicated, so most family law attorneys pay for a program to run the child support calculation. There is a free calculator online, but it's not as reliable, and it's more difficult to use.
“It's important to hire an attorney when you’re in support situations,” says Chalut, “particularly if you think that the other side is underemployed or they're not representing all of their income.”
Domestic violence is involved
Survivors of domestic violence might find it extremely challenging, painful, or scary to engage in conflict with their abusers. If you hire a lawyer, your lawyer will fight for you while you remain in the background.
“It's extremely difficult to separate your emotions from your case,” says Chalut. If you hire an attorney, “I don't care that it hurts your co-parent’s feelings to say ‘no.’ I'm not going to be upset about that,” Chalut explains. “Whereas my client might not want to say ‘no,’ because they still love them, or they have all of these emotions tied into it.”
If your co-parent has an attorney
If your co-parent has an attorney, you might need an attorney as well, or you could be at a disadvantage. But it depends on what kind of attorney your former partner hired and how the case is going.
If their lawyer is highly collaborative, you might be ok as a pro per. If their lawyer has a reputation as a “bulldog” (an aggressive lawyer who fights hard) and the conflict is only increasing, it’s time to lawyer up.
But how do you know if they’re a bulldog—or if they’re going to treat you fairly, respond respectfully, and negotiate with you?
“Google the lawyer,” says Ashworth, “and see who this person is. If you see reviews posted like, ‘She's a bulldog,’ and ‘Best money I've ever spent,’ and ‘She fought so hard for my rights’—this attorney is not going to be on the path to a quick and easy settlement.
“Your co-parent hired them for the purpose of escalating this case, and your co-parent may not be as amicable as you think.”
You need to go to court
Sometimes, court is inevitable. Other times, it comes as a surprise. Either way, “At that point, you're going to need to understand what court is like,” says Ashworth.
There’ s one common problems that Ashworth sees with pro se co-parents: They don’t know how to introduce evidence. “And the judge can't help you,” she cautions. “The pro se parent will say, ‘Well, judge, I have all this paperwork, or all these text messages,’ or whatever documents they want to show the judge. The judge isn't going to tell you how to introduce evidence.
“First, you have to lay a foundation for it. You have to authenticate it. You have to say who it's between and what it concerns. And then you have to say, ‘I want this to be an exhibit.’ People don't know that.”
And that’s just scratching the surface of courtroom procedure.
Your co-parent has an addiction problem
If your co-parent has an addiction issue, you might want them to see the children only when sober. But how do you enforce that?
“Pro se parties typically don't know the language to use to ensure sobriety,” says Ashworth.
“They may know about Soberlink, but they don't know what happens if somebody fails a test or misses a test. Family law attorneys can craft language that says what happens to their custody time if a test is missed or failed.”
A business interest is at stake
If you or your former partner owns a business or part of a business, you’ll likely need an attorney to sort it out, because it gets pretty complicated.
“Transfer of a business asset is a little bit different than traditional assets,” Chalut says. “It’s really hard to do appropriately if you don't know how to do it.”
A significant amount of money is at stake
“You need legal counsel for situations where there are assets greater than $500,000,” says Chalut. “There are lots of conditions to moving that kind of money, and you don't necessarily know them if you're dividing it by yourself.
“There is always a need to hire an outside counsel to do the qualified domestic relations order, or QDRO. A QDRO is essentially a court order that effectively divides the retirement assets based off of dates, evaluation, and asset accrual—while effectively comporting with federal and state law to divide your retirement account and protect your interest in those accounts.
You want a custody schedule or other requirement that is specific or nonstandard
The more specific your vision is for your parenting plan, the more likely you need an attorney to bring it to life.
“It could be that you want a very specific parenting time schedule,” says Chalut, “and the court's not going to write out that specific parenting time schedule for you in the exact way that you want. They’re usually going to follow standard schedules. Or they're just going to put ‘reasonable and liberal parenting time,’ which is hard to enforce.
“Whereas if you see an attorney, almost all of us will put together a specific parenting time schedule for you,” making it more likely that the judge will adopt your preferred schedule.
You’re wrapped up in your emotions
Divorce comes with big, often painful emotions, and it can be hard to see past them. “In a sense,” says Chalut, “the attorney can be disconnected, and can separate facts from emotion and help you see what is actually for the child versus for yourself.
“Clients think everything is an emergency in family law, and a lot of times, they're not actual emergencies. It becomes important to recognize that your attorney is trying to tell you for a reason, ‘Be patient. We have to let this play out.’”
The other option is appearing before a judge who could easily be frustrated or annoyed that you brought a non-emergency to his emergency attention.
“The court is not fast,” says Chalut. “The justice system is slow.”
There’s an emergency
Of course, sometimes there is an actual emergency. For a true emergency—when your child is at risk of life or limb—you can file a motion for emergency full custody.
When you don’t need an attorney
If your relationship is respectful and collaborative, you may not need a lawyer to help you reach an agreement—but you may want to get an attorney, or another legal professional, anyway.
“I've done plenty of cases where there's only me involved, and I represent Mom or I represent Dad, and the other side is not represented, and we're able to work through it. But it's because the parties themselves already are somewhat on the same page,” says Ashworth.
“There are situations where you are in agreement with your spouse or your significant other, you file the appropriate paperwork with the court, and you show up at the courthouse, and everyone's in agreement,” says Chalut. “That's something that you don't necessarily have to have an attorney for.”
But attorneys aren’t the only legal professionals who can help you. If you and your co-parent are on good terms, and you just need help with filling out and filing the paperwork, you can hire a family law paralegal or a legal document specialist. They can help you prepare the paperwork and then file it with the court for you.
Why hiring an attorney could still help
Consider getting a lawyer because kids are involved
“I'm always of the position that you should seek some legal advice for the decisions that you make regarding children,” Chalut says, “because the best interest factors are very hard to understand.” (Every state has its own list of factors that help the court decide what’s in the child’s best interests.)
Consider getting a lawyer because you’re expected to know everything an attorney knows
“When you are a person without an attorney, you are held to the standard as an attorney,” says Chalut. “Despite it looking easy, knowing the rules of evidence is not always easy, and it's hard to address things in court if you don't know how.”
Consider getting a lawyer because it’s easier for them to file in court
Even if you have an agreement worked out, “What format does it take? Is that a signed and notarized piece of notebook paper? Is it just a text confirmation? Or is that doing a formal court order which would require filing a complaint, getting the other person served, and then entering your court order and getting a judge to sign it? Which is a bit of a process,” explains Ashworth.
Plus, “A lot of people don't know that judges retain jurisdiction over children all the time. So even if you and your co-parent have a signed and notarized document that says, ‘This is what's going to happen for custody at any point in time,’ either party could file a lawsuit for custody, and the judge does not have to follow what's in that agreement.
Consider getting a lawyer because they know what you should (and shouldn’t) include in a parenting plan
Getting a lawyer doesn’t necessarily mean they manage the whole case. But it’s still helpful to get them to review your private agreement.
“If you can reach an agreement outside of court, there are attorneys who are willing to adopt that agreement for you into a judgment and a court order. I do it all the time. It's really simple,” says Chalut.
“Often, clients will come to me with ideas of things that they would like to do. But it's not practical, or it's not something that's enforceable in the future. And then they're wasting their money on a filing fee that they could have saved, addressed it appropriately, and then filed the motion.
“For example, one of my clients wanted to put in their parenting plan that they can only use a certain brand of baby wipes. Okay, that's great, but how do you enforce that provision? How do you know that they are only going to use that brand of baby wipes? Because you shouldn't be asking that of your child, and you can't stalk your other side.
“In those cases, I say, ‘Hey, this is something you can't do. This is something you can do. This is what I would suggest that you do instead.’ And if they came to that agreement, I adopt it. I represent the plaintiff. I file the action. I write all of the documents for them.
“Representing yourself is possible,” Chalut explains, “but not always recommended. And most of those cases that I have that are resolving that way? They don't have children.”
Why you should get a legal consultation—even if you don’t need an attorney
Consulting a lawyer can give you essential insights that would be tough for a non-lawyer to know—and it’s not that expensive. In fact, it could save you money in the long run.
“A consult does not mean that you have to retain the attorney,” says Ashworth. “It's just getting some advice, bringing whatever document you have, paying the $200 or $300 to do a consult, and just getting that peace of mind from somebody with a law degree who practices family law.
“You may learn a lot during the consult: some things you didn't think of to include, or some recommendations to make changes, or just some advice about how to file.
“You have to be so careful, even as lawyers, with the wording of language. There's a big difference between should and must or shall and may. So if you aren't careful on how things are drafted, it could be an expensive nightmare for you down the road, and that's what you're trying to avoid.
“Don't put yourself in the position of guessing at what is enforceable and what's not. If you’re going to come to an agreement yourself, at least ask your lawyer, ‘What are the top 10 things that I should make sure to include?’ Just to eliminate the risk that you forget something major,” Ashworth suggests.
What if you need an attorney, but you can’t afford one?
There are some situations where you can get an attorney for free or for a low cost. “If you have domestic violence in the picture, you may be able to get representation through legal aid, and sometimes that can spill over into custody court,” says Ashworth.
“If you're going through child support enforcement, and you're the party asking for child support, you will have a child support enforcement representing you. So that's a little different.
“But if you're just in custody court, regular family court,” warns Ashworth, “you're not going to be an afforded an attorney. It's not a right. So you need to be ready.”
But you have a lot of other options, too:
- Talk to an attorney in a nearby but smaller county. They might charge a lower hourly rate.
- Ask a potential attorney if they’ll take a payment plan or work with you on fees.
- Work with a new associate at an established firm, or someone fresh out of law school. They will charge less but still have oversight and mentorship from the more experienced attorneys in the firm.
- Most courts offer free family law clinics.
- Many courts also have a family law facilitator—a court-employed family law attorney who can answer questions about the process and review the paperwork.
- Lots of courts even offer “divorce in a day” clinics where local attorneys and paralegals volunteer their time to help people wrap up their divorces quickly.
- Every court has a website with a family law division section, and it will highlight any free or low-cost services are available to pro pers.
- Many law schools offer free family law clinics where people can meet and receive advice from law students who are supervised by family law attorneys.
Will getting an attorney increase the conflict? Will it affect your child?
Getting an attorney doesn’t directly impact your child, because there’s rarely any communication between the child and the lawyer. But since your attorney can shape the tone and progress of your case, this angle is still worth thinking about.
“The lawyer does not increase conflict necessarily. The issues that are at hand increase conflict. And that's true with or without an attorney,” says Ashworth.
“I would just remind all parties that it's the parents who are creating this conflict. The parents who are choosing to involve the children. There are plenty of cases where we've had the most high-conflict custody case ever, but the kids are actually doing okay, because the parents, although they're fighting against each other, they understand that exposing the children to the adult issues is not best.”
“Often, I’ll have a consult come in, and they are super worried that if they hire me, then their opposing party is going to fly off the handle, or that the case is just going to get really aggressive,” says Ashworth.
“And I tell them that that's not necessarily the case. My goal is to resolve the matter for them as quickly and as efficiently, which means as little time and cost, as possible.
“But if the parties are high conflict to begin with, it's going to cost a lot of money, and that's just the way it is. The more high conflict it is, the more court dates there may be, and the more things that are in play, like discovery and depositions and subpoenas, which all cost money.”
Ultimately, it depends on what kind of attorney you hire, explains Chalut. “There are situations where hiring an attorney can increase conflict, and there are situations where it won't. The person you pick is how you're going to essentially determine the temperature and the acceleration of your case.”
An attorney can focus on the child’s best interest factors
“The best interest factors can be heavily dependent on whether or not they're viewed from the child's perspective or the parent's perspective,” Chalut explains.
“And when you choose to have an attorney, the attorney is able to present it from the child's perspective for you. Whereas a lot of times, people who are unrepresented don't know how to present it through the child's perspective.
Ashworth explains, “An attorney can subpoena things like medical records, mental health records, CPS records, and therapists’ records, and get more information that will help the judge determine what's in the best interest of the children. This is helpful when there are mental, physical, behavioral, or addiction issues at hand.
How a co-parenting app can help you represent yourself—or work with your attorney in a cost-effective way
Using a co-parenting app like OurFamilyWizard is useful whether you hire a lawyer or not.
If you hire a lawyer, they can use a Professional Account to view your app activity and fetch the exact documentation they need. You won’t need to email a hundred screenshots, and your lawyer won’t need to piece them together. (Saving one hour of attorney’s fees usually covers the cost of an annual OurFamilyWizard subscription.)
Or if you represent yourself, you can know that your evidence is admissible in court, and you don’t have to prepare it any special way.
“Co-parenting app messages, like OurFamilyWizard, are amazing because they have the date and who said the message,” says Ashworth. “And then the whole chain is right there. So you're not worried about the opposing party or opposing counsel objecting to completeness, because you have the full message.
“And you don’t have to worry about a lack of authentication, because you have the names, and who said what. It's very, very clear, versus screenshots. Screenshots are so messy—it’s like an art project where you're trying to cut and paste.”
With OurFamilyWizard, you can generate a court-admissible PDF report in just a few minutes. Your attorney can generate it themselves, or you can email it to your attorney, or you can bring it to court if you’re representing yourself. It will be easy to for the judge to follow, so they can get a clear picture of your case—whether you have an attorney or not.
