It is not uncommon for me to receive phone calls or emails from people inquiring whether they really “need” an attorney for their divorce. They don’t own much and they agree about everything. Often a brief conversation reveals that there are property issues they do not know how to handle or children involved with various custody questions, and the caller begins to appreciate that an attorney is really needed. Occasionally, the caller will inform me that s/he owns nothing but low-value personal property, the parties have been separated and have divided all their personal property, there are no retirement or investment accounts and no children. In such cases, I will say that it is best practice to utilize the services of an attorney, but that it is possible to get through the process without the benefit of legal counsel, especially with forms that are available on-line.
Back in 2008, when the US economy took a nose dive, with countless thousands of Americans losing their jobs, their insurance and even their homes, Michigan was hard hit. The impact on family court was immediately apparent. Whereas it had historically been uncommon to see a couple before the judge without lawyers, that suddenly changed. It became commonplace for courtrooms to be full of the self-represented. Judges and their staff had to undergo special training to deal with the huge uptick of “in pro per” litigants. Typically, these were people who were economically devastated and unable to afford attorneys. They reminded me of salmon swimming upstream or explorers bushwhacking in the forest.
And, because there is always someone ready to capitalize on the misfortune of others, some very clever people out there saw an opportunity to make a buck and seized it. All manner of websites popped up offering – for a modest fee, of course – do it yourself legal forms, including do it yourself divorces. If one is truly impoverished, has nothing to fight over (like children, home ownership and equity, retirement accounts, or debt distribution), it is a good thing to have simplified forms to assist in wending one’s way through the legal system without a lawyer doing the navigating. And those are the callers who, while I don’t advise proceeding without representation, can probably make it work.
However, DIY divorces are a trap for many unwary souls who do have something at stake, whether it be issues pertaining to children, a marital home, other assets or even debt. A form is not a substitute for a lawyer, any more than a smart phone camera in the untrained hand is a substitute for a professional portrait photographer! It is one thing to know how to fill out a form, and quite another to present a winning case to a judge. Lawyers do not spend years in school and many thousands of dollars merely to learn how to complete forms, and the ability to fill out a form does not create a winning case.
So, how does a person assess whether an attorney is necessary? In an ideal world, anyone who needs to bring a case to court will retain the services of an attorney to ensure that proper procedure is followed and the legal goal is reached. It is hoped that the truly indigent will be matched with either a legal service organization or a private attorney willing to take on a case either pro bono (without fee) or for a reduced fee. But we do not live in an ideal world, so if you are contemplating bringing your case to family court without the benefit of an attorney, there are some questions you may wish to evaluate before you decide to go it alone.
1. While a general rule may be stated that in Michigan marital property gets divided roughly equally, there are many exceptions to that rule. Do you know what those exceptions are? If not and if you have any of the following, an attorney should be retained to ensure that an equitable result is achieved:
a. Retirement savings;
b. Investments;
c. Real estate;
d. Personal property of substantial value (e.g., property worth over $1,000).
2. Have you ever been the victim of abuse (verbal, emotional or physical) in your marriage? If so, how do you expect to negotiate on your own behalf to ensure you receive all that is fair? Do you even know what “fair” is in a case involving domestic violence? An attorney should be retained to ensure that negotiating a settlement proceeds without intimidation and that proper legal measures are taken to keep you safe;
3. If there are children, do you understand how parenting time interacts with child support? Do you know there is a difference between overnight parenting time and parenting time that does not involve an overnight? Do you know that the amount of child support that should be paid is mandatory and that parents cannot simply come up with a figure of their own? Do you know how custody orders can affect future decisions to move? It is essential to consult with an attorney in working out a custody and parenting time plan, as well as determining child support, child care, health insurance issues, etc.
4. Do you know what factors are taken into consideration when determining whether alimony should be paid and if so, how much and/or for how long? No? An attorney certainly would.
5. If there was property owned by one or both of you before the marriage and there is also property obtained after the marriage, do you know how the different properties should be treated when it comes time to divide it in a divorce judgment? You might require the assistance of an attorney, especially if one person appears to be leaving the marriage with a great deal more than the other.
6. Do you know whether you should “opt out” of the Friend of the Court? Do you know how? I recently had a call from a judge’s clerk advising that the paperwork I filed to help a client opt out of the Friend of the Court was insufficient and that I needed to file a motion. The problem? It was after entry of the divorce judgment and I was no longer representing that client (a savvy businessman, I might add). I had nothing to do with whatever my former client had delivered to the court in the mistaken belief that he could achieve a legal goal without the benefit of an attorney’s assistance.
7. Do you know how to obtain your share of your spouse’s pension or 401k? I recently heard from a colleague that she was approached by a potential client who had been told all she had to do was send her divorce judgment (a form she had filled out on line, I might add) to the 401k Plan Administrator and she would get her money. Wrong!
I could go on and on, because there are a myriad of family law issues that come up and each case is different. I hope I have made my point and that you will evaluate (hopefully with the benefit of a consultation with a family law attorney) before you decide to throw a few hundred dollars at some on-line forms in the mistaken belief that you will achieve a fair and equitable divorce. Because, if you do not, the money you “saved” on retaining an attorney will be lost in the soaking you give yourself in court.
