It’s probably no secret to you that an attorney isn’t necessary in absolutely every case ever. In some cases, there’s really no need to hire an attorney – as I was reminded yesterday in a conversation that I had with a really sweet prospective client.
The thing is, though, that it’s really hard to know whether you qualify under the ‘need an attorney’ heading or the ‘don’t need an attorney’ heading. Without real legal experience – without having seen hundreds or thousands of divorce or custody cases – and, sometimes, frankly, even WITH a ton of experience, it can be hard to know whether your issues rise to the level requiring counsel.
Especially given the expense associated with hiring an attorney, it’s tempting to start to wonder whether you could maybe do without hiring an attorney at all. But, obviously, you don’t really want to put yourself where you’re at a disadvantage, or where you waive your interest in an asset that you would otherwise have been legally entitled to receive.
Without knowing your rights and entitlements, it’s hard to know. So, incidentally, that’s why I write to you today.
I took some of the most common situations – situations that people tend to think are more simple – and have explained whether an attorney would be required, or not, in that particular set of circumstances, as well as any other factors I think that you should maybe be aware of, if you fall under this category.
Do I need a family law attorney if we were only married a short time and don’t have children in common?
Being married a short time and not having children in common definitely makes things easier, but, in general, I think it’s wise to at least consult with an attorney. Maybe you want a separation agreement drawn up where you formally waive an interest in each other’s property, most of which is likely separate anyway.
To the extent that you do have marital assets – like, perhaps, an interest in retirement, or equity in a jointly purchased home – you’ll need to make sure that your I’s are dotted and your t’s are crossed. Remember, too, that debt is a marital liability and, as such, is divisible in divorce, so if there’s a considerable amount of debt, it’ll need to be handled.
It’s possible that you could work through your issues in mediation, rather than using an attorney to negotiate a separation agreement. But, in general, we do advise that you consult with an attorney before attending mediation and after mediation, before any proposed agreement is signed – just to make sure it puts you in the best possible position in the future.
Keep in mind that we look at a divorce as a two part process: (1) negotiating a separation agreement, and (2) finalizing the uncontested divorce. In any case, both processes have plenty of places where you could run into issues, and consulting with an attorney – if not hiring one to represent you – is almost certainly the wisest course of action.
Do I need a family law attorney for my divorce if we’re in agreement about how everything – including child custody and spousal support – should be handled?
As far as divorce is concerned, the most difficult issues to reach agreement on (and the ones most likely to result in litigation) are usually child custody and spousal support. Not having major issues on those points is really helpful.
Still, though – remember there are two parts here. Actually drafting the agreement – which, theoretically, you could do yourself – and finalizing the uncontested divorce.
Keep in mind, too, that our agreements include a lot of language that you might not think to include. We’ve seen so many agreements, over the years, that we’ve devised our agreement to include specific terms that ensure the greatest degree of protection to our clients, both immediately after the divorce and beyond.
I’ve said it before, and I’ll say it again: our goal is two-fold. First, to get you a divorce today. Obviously! And, secondly, to make sure that you don’t have any unnecessary drama later on down the line. Whether an agreement can be overturned or not (and, almost without exception, they can’t), to litigate over extra issues later, regardless of the outcome, is stressful and expensive – something we go to great pains to avoid.
Drafting the agreement yourself, or relying on an agreement drafted by a mediator, can cause enormous problems later.
Seemingly simple things – like a misunderstanding regarding a word used – can result in future litigation. The agreement needs to be clear, concise, and unambiguous. It’s not an easy thing to achieve, even in a case where the parties seem to be in agreement.
And, in any case, there’s still the matter of finalizing the uncontested divorce.
Do I need a family law attorney if we’re separated and considering divorce, but – in the meantime – he’s paying me support or allowing me to continue to have access to the marital funds?
I think the answer here is that you will probably eventually need an attorney – but, in the short term, if your financial needs are met and custody is (at least in the short term) not an issue, maybe it’s better to just let it ride?
This is always a personal decision. Do you need to move it forward? Are you hoping to date or have romantic relationships sooner rather than later? Is there some other reason that you need to see and feel some forward progress?
If, though, you’re not in a real hurry, if you’re able to keep a roof over your head and not worry too much about finances in the short term, you don’t need to hurry the (probably) inevitable along. Maybe you’ll reconcile. Maybe you won’t. But, still, there’s definitely something to be said for riding it out until you have to get an attorney, especially if you’re worried about spousal support or what will happen to the marital residence. Just because you’re getting a divorce doesn’t necessarily mean you have to hurry it along.
It also doesn’t mean that you have to be an ostrich in the meantime, either. Read our books on divorce and custody. Attend a monthly divorce seminar. Get a feel for the way divorce law operates in Virginia, and be ready to hire an attorney if and when you need to – but that doesn’t mean you have to act today if you’re not ready and things are going okay in the short term.
Do I need a family law attorney if I have custody of our child(ren), and we’re in agreement about how to handle a parenting plan?
Maybe not! This is the main area where I see that a person might not need to hire a lawyer. You see, just because a man and a woman had a baby but are no longer romantically linked doesn’t necessarily mean that they’re required to go to court or negotiate a custody agreement.
Though, admittedly, agreeable couples are not the ones that I normally see, I imagine that there are scores of ex-couples all over the country who never go to court or negotiate a custody agreement. They just patiently work together behind the scenes – sometimes easily, sometimes not nearly as much – to figure out what’s in their children’s best interests.
If you have custody, if you’re agreeable about when your child’s father should have parenting time, if he’s providing ‘support’ (whether by the guidelines or just according to some informal agreement that you have reached between the two of you), and everyone is mostly more or less happy with the arrangement, why go to court?
There’s no rule out there that you have to. If what you’re doing is working for you, then maybe let it ride. Certainly, if the situation changes later, you might choose to work with an attorney – but there’s no reason to push it when otherwise everyone is getting along just fine.
If I’m being completely honest, in every single divorce case, it’s going to be ideal to have an attorney. I can’t think of a situation ‘easy’ enough that I’d recommend that you undertake it without at least discussing with an attorney. Not only is it fairly difficult procedurally, but there’s the whole matter of understanding your various rights and entitlements. To waive – or fail to claim or only partially claim – an asset to which you would otherwise have been entitled is a mistake that could cost you tens of thousands of dollars.
Child custody is a bit different in the sense that it’s always modifiable based on a material change in circumstances. The actual terms of the divorce, though, are NOT modifiable. Equitable distribution is final once an agreement is signed or a court order is entered. You should tread carefully and get good advice.
Even in a marriage of relatively short duration, there are potential pitfalls that you’d want to avoid – or, at the very least, consult with an attorney about before attempting to do it on your own, just to make sure that you’re not making any potentially irreversible mistakes.
I don’t mean to be a Debbie Downer, but I do want to make sure that you have a full and accurate picture of what a divorce or custody case might involve, so that you can make the best decisions possible for yourself and your family.
For more information, or to schedule a consultation, give our office a call at 757-425-5200, or visit our website at Hoflaw.com.