Do I Need An Attorney For A Divorce?
Without a doubt, the most difficult question in any divorce is the first one that must be answered: Should I divorce my spouse? This question involves many considerations—emotional, legal, religious, social, among many others—in arriving at a decision. After answering this question, another difficult question will likely arise: Do I really need to hire an attorney for this? Unfortunately, this question is influenced by a myriad of factors and considerations as well. Below is a discussion about what you should consider in determining if an attorney needs to be hired to protect your interests during a divorce.
At its most basic, the decision to hire an attorney is just like the decision to hire any other professional. First, you have to decide if you have the skills needed to complete the task—here, to pursue and complete the divorce. Every case will not require all the knowledge and skill a lawyer possesses, just as every car repair or maintenance task will not require the full skills of a mechanic. Thus, you may be able to change your car’s oil on your own, but unable to replace a timing belt. The difficulty with legal problems is quite different, though. What you’ll need to know and do to get the result you want is difficult to guess. Instead, having a legal problem is a lot like having an unknown problem with your car, your home, or your computer. You know the result you want, and perhaps you have the skills to get that result, but the danger lies in the unknown—the diagnostic portion of your problem.
The next consideration ties into this problem of diagnostics. Simply put, what is the risk you’re taking on by assuming you don’t need a professional’s help? In some instances, the risk may be extremely low: if I can’t fix this leaky faucet, I’ll have a bit of hurt pride but I can just hire a plumber. Legal problems aren’t like this. Two bedrock principles in law are finality and waiver. Finality means you only get once chance to solve a legal problem. Once a court has ruled on your problem, there is no re-do. In the context of divorce, this means you will be stuck with the result you are able to obtain for yourself: the amount of spousal support, the amount of child support, the division of your property. The second principle—waiver—is perhaps even more dangerous. A party to a legal action, such as a divorce, has to play all the cards he or she has the first time through. Any argument, defense, etc. that is not brought before the court in a timely manner is waived—gone forever. Finality and waiver work together to make most legal problems, including divorce, very dangerous in terms of missteps. And considering what is at risk—your home, your property, your money, and even your children—these risks are likely ones that are not worth taking.
In addition to the general consideration above, the specifics of the divorce must also be considered. The first question should be clearly decisive: Does the other side have an attorney? If your spouse has hired an attorney, the dangers of self-representation multiple ten-fold. In American courts, judges are required to be moderators and decision-makers, not advocates. Each side is responsible for identifying what they want, how the court can give them that, and why the law allows for that outcome. These may seem easy enough, but look at one simple example. Suppose you have something major come up on a scheduled court date, such as a funeral. You want to ask the judge to move the court date to another day. So how do you do that? You can’t simply call the court and tell them your dilemma; that’s not an appropriate way to get to that result. Instead, you’d have to file a motion for a continuance under Section 60-240. This motion must comply with all Kansas Rules of Civil Procedure and all local rules of that court. But you’re still not there yet: the other side can object to your motion and the court will have to decide who is right. What law supports your desire to have the court date moved? The obvious answer is common sense, but courts rest on legal authority—what law says you are entitled to have the result you are seeking? When the other side has an attorney, you are placed at a tremendous disadvantage. Even something as simple as asking for a change in your court date can be onerous, and if the attorney for the other side wants to contest such actions, it may become nearly impossible for you to respond.
If the other side is also self-representing, you will have to honestly consider how amicable your divorce will be. If the divorce is contested, meaning you have disagreements, self-representation will almost certainly be off the table. Remember, you have to offer the court a legal means of getting to the result and legal support for that result. If you and your spouse are fighting over property divisions, support amounts, or other parts of a divorce, you will be fighting a legal battle to get your results; arguing to common sense and emotional appeal cannot win the day in court. Even if you divorce is amicable and uncontested, you have to ask yourself if this will be true throughout the process. Is your spouse going to agree to let you stay in the martial home? If not, is your spouse going to be willing pay you the equity you have put in that house? Even amicable divorces can quickly turn hostile when disagreements arise. Having an attorney not only helps in navigating the legal aspect of the divorce, but also provides an outside opinion, free from the obvious emotional ties each party has.
The decision to forego hiring an attorney is a huge and should not be made lightly. As the old maxim goes, “the man who represents himself has a fool for a client.” Even when what you want seems easily obtainable, knowledge and experience with the law are the only means of ensuring you succeed in court. Contacting capable legal counsel is essential. An experienced lawyer will be able to identify issues you may be unaware of and will be able to protect your interests in a divorce. After all, you only have one shot at the divorce and the resulting obligations will last years to come. That is a long time to live with a mistake. If you need the help of an experienced divorce and family law attorney in Johnson County, Kansas feel free to contact our office.
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