May 1, 2007

Do I need a lawyer for my divorce?

I’m asked all the time: “Do I need a lawyer for my divorce case?” There’s no simple answer to this question.

Oregon doesn’t have a law that forces you to hire a lawyer in a divorce case. You can get divorced even though neither of you hires an attorney. While a judge might tell you in a contested case (where your spouse officially responds to your petition with a pleading of his or her own) to get a lawyer, the court won’t stop you from proceeding if you decide to represent yourself.

There are some types of cases where it’s probably OK to go it alone… generally where you and your spouse agree on all terms of the divorce. In all counties in Oregon, the courts have set up family court assistance offices for parties proceeding without a lawyer. These offices are usually located in the courthouses themselves, and are led by trained facilitators, who are usually court clerks. These facilitators are excellent resources for parties with simple cases.

There is an enormous difference between consulting with a lawyer during the divorce process and retaining a lawyer. A consultation is a simple meeting with a lawyer where you lay out the basic facts of your case, and you and the lawyer discuss it. When you retain a lawyer, the lawyer commits to representing you through the proceeding. It is a good idea for everyone to consult with a lawyer during his or her divorce case at least once. There are many things that lawyers can do for you: for example, a lawyer can help you identify the legal issues surrounding your divorce and will know how to best proceed to protect your interests. You could miss something important if you tried a do-it-yourself divorce, and it might have long-term ramifications.

Even in a short term marriage, there is usually property whose ownership needs to change from one party to another, and a lawyer can help with title transfer. At a minimum, it is a good idea to consult with a lawyer at the beginning of a case to identify issues, and to have a lawyer look over the final judgment before it is presented to the court. Most lawyers will charge you their hourly rate for such a service.

The next question you need to ask yourself is: even though you can proceed on your own without formally hiring a lawyer, should you?Again, that’s not an easy question to answer. But if your case has one or more complicating factors, it would be a very good idea to retain an attorney. If you and your spouse have children, and you disagree about parenting time and/or custody, you should hire a lawyer.

If you do not have a lawyer, and end up in a trial in front of a judge, you are limited in what you can present by court rules. As a result, you may not be able to testify to why you think your parenting plan is best or put witnesses on who support your position. Lawyers are trained to identify any possible problems with evidence and plan ahead for them.If there has been any domestic violence during the marriage, you should probably hire a lawyer.

If you and your spouse disagree about how property will be divided, you should probably retain a lawyer. This doesn’t apply just to real property, but also investments, retirement accounts, and even personal property you may own, like your jewelry, your golf clubs, or your cars. In Oregon, you only get one chance to get it right, as property settlements are non-modifiable after a judgment has been entered.

If you have real estate, a pension, a 401(k), an IRA, an Employee Stock Purchase Plan, or valuable personal property, you should probably hire a lawyer. Another important reason to retain a lawyer is if you or your spouse has a small business, either jointly or together, or if either of you has stock in a family owned business.

If you and your spouse have recently applied for bankruptcy protection, you should probably hire a lawyer.

If you have been married for more than three years and you and your spouse have intertwined your finances during the marriage, you should probably hire a lawyer.

If you or your spouse have substantial health problems, you should probably hire a lawyer.

In conclusion, even if the case appears simple, it’s a good idea to at least consult with a lawyer. If you and your spouse do not agree about money, property, support, or the children, you should probably retain a lawyer to protect your rights throughout the dissolution proceeding.