More than anything, Jessica felt alone. Sure, her decision or realization that she was getting divorced hurt. It also made her feel sad, even depressed. She could tell that she was dragging around, not wanting to go on with her day. But more than anything, Jessica felt like she had no one on her side, no one standing with her who understood what she was going through and would help her with it. Jessica had a friend who’d handled her own divorce and said she’d help her do the same. But Jessica knew that she wasn’t up to handling her own divorce. She needed help.

Attorneys

The prior chapter reveals the technical steps spouses must follow to start their divorce. The way, though, that spouses often get started with their divorce is to contact an attorney. As indicated in an earlier chapter, attorneys must represent only one spouse in a divorce. The attorney would have too serious of a conflict of interest to represent both. Some attorneys in restorative practice may serve in the role of a mediator to help both spouses come to an agreement over divorce, after which the parties may proceed with the agreed-upon divorce while unrepresented. But that arrangement is unusual and not widely available. Generally, one spouse or the other retains an attorney to get the divorce started, unless they decide that they’re up to handling their divorce alone. 

Unrepresented

Be cautious going it alone, representing yourself without an attorney. The stakes in a divorce can be very high, especially if children are involved or the parties have substantial marital property, substantial earnings, or the prospects for substantial earnings. A no-children, no-assets divorce can be relatively simple, but even there, the spouses may have debts to pay or a pension to divide, or may have earned a degree or acquired a business interest in the marriage that could produce substantial future earnings. Valuing assets, preparing the special qualified domestic relations order (QDRO) required to divide a pension or retirement accounts, assigning debts, and ensuring their payment can all take an attorney’s knowledge and skills. Judges can’t help you much. They certainly can’t represent either party or give legal advice, and they don’t generally prepare court papers other than, sometimes, their own opinions and orders. Don’t cost yourself a fortune and substantial delay and frustration, trying to save yourself a modest attorney’s fee.

Review

One alternative that spouses who are cooperating well in a divorce may pursue is for only one of the two spouses to retain an attorney initially, to handle all the filings. If the spouses trust one another to that extent, the attorney representing the filing spouse can shepherd the case all the way to drafting the negotiated consent judgment of divorce. Don’t, though, sign a consent judgment of divorce prepared by your spouse’s attorney, without having your own attorney review it. You may find an attorney willing to spend an hour with you going through the judgment to be sure it meets the usual treatment of issues in a divorce and that you understand and agree with its terms. Not every attorney will do so because an hour isn’t generally enough time to get a full view of a case. But it’s something, and you might then only have to pay a very modest sum rather than a larger retainer, if costs of the divorce are a special concern. See a paragraph below about cost shifting.

Centers

Another potential alternative to retaining attorneys is a self-help center for unrepresented litigants. Some courthouses have centers where unrepresented parties can pick up legal forms. Personnel staffing the center won’t be able to give legal advice. But they can help unrepresented litigants find the right court forms to at least initiate, if not also navigate, some proceedings, including divorce. If your courthouse does not have such a center, then you may find a similar resource located elsewhere in your community. You may also find forms online, like the several examples at the end of this guide. Forms can be helpful, but they’re only forms, designed for standard proceedings. Many proceedings, especially divorces, are not standard. And again, as stated above, a spouse’s interests in divorce can be so substantial that attempting to navigate a divorce using self-help forms can be costly, depriving the unrepresented spouse of important rights and interests. Get attorney help unless you are convinced you have no need for it.

Roles

Attorneys generally do much more for their clients in a divorce proceeding than simply draft and file court papers. Their primary role is in advising you, the spouse with the deepest interests in the proceeding. You decide things within your control, such as proposed terms of a resolution. Your attorney does not decide for you. But to make an informed decision, you need your attorney’s information, confidential assessment, and experienced advice. Informing you of your rights and procedural opportunities to enforce them is your attorney's main role. Attorneys, though, are also go-betweens for the parties. Attorneys representing each spouse can meet, speak, and negotiate without the emotional and other burdens spouses carry in divorce. Attorneys are also advocates. You can, if you wish, have opportunities to speak for yourself in court, but you may prefer that a skilled attorney advocate for you. Attorneys can also be wise counselors, giving you insight into your own thinking and behavior, helping you stabilize, adjust, and even grow in poise and confidence.

Retainer

Attorneys represent divorcing spouses under retainer agreements. While those agreements vary, a typical arrangement is for the spouse to pay a retainer fee for the attorney to appear on the spouse’s behalf in the divorce proceeding. The retainer fee may vary based on the attorney’s estimate of the complexity of the case. The likelihood of sharp disagreements between the parties requiring court hearings and orders, the presence, number, and ages of children in the matter, and the nature and value of property or business interests can all affect the cost and complexity of a divorce. Attorneys typically receive compensation on an hourly basis in divorce proceedings, meaning the greater the complexity and conflict, the greater the cost of paying attorneys. A retainer paid in advance ensures that the attorney receives at least a portion of the value of the attorney’s hours and services. 

Billing

If you retain an attorney under a retainer agreement, you should expect to receive a monthly itemized bill reflecting the attorney’s charges against the retainer. The bills should include the dates, hours, and tasks on which the attorney worked in your case. The monthly billing enables you to track your divorce proceeding’s cost. To a large degree, you and your spouse control the cost of your proceeding. Generally, the greater your cooperation, the lower your costs, while the greater your conflict, the greater your cost. If the hours that your case requires your attorney to work exhaust the initial retainer that you paid, your attorney may ask you to pay an additional retainer to cover the ongoing costs. While attorneys’ fees can be an unfortunate cost in a divorce, especially when your spouse acts unreasonably, driving up both of your costs, attorneys’ fees also serve to remind the spouses that conflict should not be the object. Favorable resolution, often best through negotiated agreement, is the object. A divorce case that goes all the way to a full trial, requiring the judge to hear evidence and rule on child custody and support, spousal support, and property division, can be vastly more expensive than a largely uncontested divorce. 

Payment

Divorcing spouses often have unequal incomes or unequal access to accounts or other assets out of which to pay an attorney, at least until the divorce concludes with a division of accounts and other property. Courts and attorneys recognize the situation of a spouse who has no earned income and may not have accounts or other assets to access, when the other spouse has plenty of income and assets. Your judge may have authority to require your spouse to pay your attorney, in the divorce judgment. Or if the divorce judgment awards you substantial property, you may be able to pay your attorney out of those awarded assets. If you cannot afford an attorney but your spouse can, consult with the attorney whom you would like to retain. The attorney may propose other terms besides a retainer fee up front, so that you can have the attorney’s representation, but the attorney can recover a reasonable fee from the other side at the conclusion or in the course of the proceeding.

Factors

You should have some idea from the above discussion whether you need an attorney. But consider a few other factors that may influence your decision. The more experience you have with procedures and administrative matters, the more likely you are to be able to understand, with the guidance of others, what you need to do to get through the divorce process. The better you are at standing up for yourself and advocating for your own interests, the more likely you are to come out of the process with what you deserve. The cooler your head at making sound judgments under stress, the less likely you are to get overwhelmed and to give away your rights. But just keep in mind that when it comes to caring for your minor children, if you have minor children in a divorce, nothing is more important to you. Likewise, if you’ve been married for a relatively long time, and you had no children in the marriage or your children are adults, you may still have substantial property and spousal-support interests. Don’t fool around with custody of your kids, recovery of your property, or provision for your support. If you’re not getting along with your spouse or can’t trust your spouse, and your spouse has an attorney, you very probably need one, too. Get the qualified attorney help you need. 

Staff

If you do hire an attorney, take full advantage of the attorney’s skilled staff members. Attorneys employ associates, paralegals, administrative assistants, secretaries, investigators, and other professionals to help them prepare cases. You may feel that the attorney is ignoring you or treating your divorce as less important than the attorney’s other matters, when you find yourself dealing with the attorney’s staff members. Don’t feel shortchanged if staff members call to get papers and information from you, help you prepare answers to interrogatories or other discovery requests, and do similar case-administration tasks. Your attorney may be saving you significant attorney time and therefore saving you significant attorney’s fees. Staff members can even answer your basic questions about things like court procedures and the status of your case. But when you need advice about what to do in your divorce, make sure that you get that advice from the attorney whom you retained. 

Locating

If you’ve now decided to retain an attorney to represent you in your divorce proceeding, you may have questions about how to locate the right attorney for you. If you already know an attorney whom you trust but that attorney does not handle divorce cases, ask that attorney for a referral. Generally, attorneys refer only to other attorneys whom they respect and trust. Word of mouth from an attorney’s former clients can be another good way to find a qualified attorney. If they liked their attorney, then that satisfied client gives you a good reference already. If you have a friend or acquaintance who got a divorce and was pleased with their attorney, put that attorney on your candidate list. Local and state bar associations also often have attorney referral lists, found online. And of course online advertising, billboard advertising, and other forms of advertising can lead you to many attorneys offering divorce services. 

Research

Once you’ve located one or more attorneys in your area who handle divorce cases, do some background research. See if they have biographical information on a website or social media page. Read their biographical information for indications of sound character, like community connections, charitable volunteering, and leadership positions. Review their professional information for experience with civil litigation generally and divorce cases specifically. Family law tends to be a niche practice area, where attorneys are either in or they’re out. Look for attorneys who focus on family law and have built the experience that your divorce may need. Again, professional leadership, such as in a family law section of the local or state bar association, can show how respected an attorney is in the specific field. Check the state bar’s website for the attorney’s official listing, to see if the attorney has any disciplinary record or is instead in good standing. Ask around, too, to see if others know the attorney your search is focusing on, or know the attorney’s reputation. A good reputation in the community is gold.

Choosing

To choose your attorney, schedule an appointment to meet the attorney. When calling for an appointment, explain that you are filing for divorce or your spouse already has filed or is planning to do so, that you’ll need an attorney, and that you would like to meet to learn about the attorney’s availability, requirements, and fees. Attorneys often meet clients for an initial consultation, sometimes for free, or they may charge a modest fee or, if you retain them, include the initial consultation as part of their service. At the initial consultation, learn about the attorney’s retainer requirement, experience, interest, and availability. The most experienced attorney isn’t necessarily the best, but experience can help. The most expensive attorney also isn’t necessarily the best. Newer attorneys charging less may have equivalent or even greater skills. You can also ask if the attorney has any references you could check. But mainly, see how comfortable you are with the attorney’s manner and how confident you are in the attorney’s experience, character, knowledge, and wisdom. You’ll need to trust and respect your attorney. It’s even better if you get along with their personality.

Cooperating

Once you retain an attorney, cooperate with the attorney. Cooperating doesn’t necessarily mean agreeing with every recommendation and doing exactly as the attorney suggests. Decisions in your divorce are for you to make. But if your attorney asks you to call, stop by the office, answer written questions, supply information to an assistant, sign and return documents, or do other case-related tasks, then do so promptly, thoroughly, and accurately. Don’t make it hard for your attorney. It won’t help you, your relationship with your attorney, or your case. Above all, keep your attorney informed of your address, telephone, absences for trips, and other whereabouts. Your attorney may need you to stay in touch to provide information, sign or approve documents, make or respond to settlement proposals, or even appear in court. A client’s failure to cooperate is a ground for an attorney to withdraw from the case. Don’t lose the services of the highly qualified and skilled attorney whom you hired.

Disputes

Not all clients get along with their attorney. If you find that your attorney is not treating you with respect or your matter with diligence, you may terminate your attorney’s representation and retain a different attorney. Beware changing attorneys in the middle of your divorce case, though. Some attorneys are reluctant to take over for another attorney in the middle of a case. Be sure you have an attorney willing to do so before you terminate your current attorney’s representation. Firing and hiring attorneys can also signal to the other side and even to the judge that you might be acting unreasonably with respect to your case, especially if the attorney whom you fire has a good professional reputation. You may not like your attorney’s advice, but you don’t have to accept it. If you disagree with your attorney over the fees charged, discuss it with your attorney. If you can’t resolve the fee dispute, ask the attorney or local bar association if a fee-dispute mediation service is available to work things out. If your attorney appears to act dishonestly or unethically, tell your attorney so. If your attorney can’t explain or correct what you perceive to be wrong, then report to the state bar.

Key Points

• Retain an attorney if disputing over children, debts, or property.

• Go unrepresented only if no children, property, or support dispute.

• Courthouse self-help centers may provide you with helpful forms.

• You may need an attorney to review a consent judgment you negotiate.

• The attorney you retain can fulfill several roles including counseling.

• Divorce attorneys usually charge hourly, billing against a retainer.

• Inquire about fee shifting if you cannot pay a retainer or bills timely.

• Working with your attorney’s staff members can save on fees.

• Locate attorney candidates through word of mouth and online.

• Research the candidates you identify for divorce experience and skills.

• Meet with your candidate attorney before retaining the attorney.

• Cooperate with your attorney, staying in touch at all times.

• Tell your attorney if you disagree with their conduct or bill.

• Seek state bar help if your attorney is unethical or dishonest.

Read Chapter 9.