Filed in Divorce, on March 24, 2021
With the skyrocketing cost of attorneys and the move in our culture toward making access to justice to everyone a reality rather than just a “pie-in-the-sky” concept, many people are choosing to represent themselves in court. As an attorney, while I support giving people meaningful access to the court system, I generally do not advise potential clients to represent themselves in a contested divorce. I do not discourage this simply because I have a financial interest in having clients retain my services. In a divorce situation, unlike other areas of litigation, the parties have emotional and financial interests at stake which can definitely cloud judgment.
More often than not, those emotional and financial interests are deeply intertwined. For example, in a contested custody case, parents have an emotional interest in making sure their children are properly cared for. Parents also have a financial interest by way of paying or receiving child support and planning for future educational (college) costs. One parent cannot make divorce work financially for them unless he or she receives child support; one parent cannot make divorce work financially for them if he or she has to pay child support. This has become more complicated with the “new” method of calculating child support using both parents’ incomes.
I find that self represented litigants (“SLRs”) have the most success in cases where the issues are agreed. There are forms for SLRs with check boxes that can be easily filled out. However, while the forms are meant to cover most situations, in my over 20 years of practice, all cases are different and have special considerations. Most cases have issues that should or must be addressed by doing more than just checking a box on a form.
So what is the solution? It depends. Here are some types of cases I usually advise clients to retain an attorney for and why:
Keep in mind that there are different kinds of retainers. The retainer can be a full retainer where the attorney drafts all pleadings and appears for the client in court. The retainer can be a limited scope retainer where the attorney assists the client in drafting pleadings, but the client is responsible for filing and arguing their position. Limited scope retainers offer a client a more affordable way to finance their divorce and can give some confidence to the SLR in stating their positions and making coherent arguments. However, I do not advise limited scope retainers when the other party is represented by an attorney. In this situation, you are not working on a level playing field. The SLR can easily be taken off guard when an attorney starts citing statutes or quoting case law. When I do suggest a limited scope retainer, I do so with a caveat or a disclaimer. Part of that disclaimer includes that I will not see what happens in court, and when a client asks happened at a court appearance and why, I can only speculate. I have to rely on the accuracy of what the client is telling me, and often I don’t get a clear picture of what happened because I am only getting the information from one side. I find limited scope retainers are most useful when a client just needs me to calculate child support or maintenance based on an agreement between the parties as to their respective incomes.
Before making a decision, determine the complexity of your issues and how far apart you are from your spouse in the negotiations. If the issues are not terribly complex, and you have just a few minor issues that you cannot agree upon, a DIY divorce may be appropriate for you. If you have a moderate level of disagreement and your issues are leaning towards complex, you may want to consider, at minimum, a limited scope representation arrangement.