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By Val Hemminger; Family Law Lawyer, Divorce Coach and creator of The Better Divorce Project
Can you divorce without a lawyer? Of course you can. Remember, however, that a “divorce” is a court order that states you are no longer legally married to your former spouse. It allows you to marry someone else if you want. Most of the time, however, when we think about getting divorced, we are really thinking about getting a legally binding final separation agreement that answers these three questions:
Divorcing without a lawyer is up to you. However, there are four occasions when I highly recommend that you do consult with a lawyer in your specific jurisdiction.
While divorcing without a lawyer might be what you want to do, I highly recommend that you consult with a lawyer in your specific jurisdiction for at least an hour or two so that they can tell you what your rights and responsibilities are as it relates to what is most important, getting you to a final and legally binding separation agreement.
Many people skip retaining any lawyer and negotiate an agreement with their spouse directly. Nothing is wrong with this as long as you know your rights and responsibilities before negotiating directly with your spouse. Make sure you choose the best family lawyer you can.
One of the big mistakes people make when getting separated is that they don’t consult with a lawyer before negotiating with their spouse. For example, in my jurisdiction, when spouses share children equally, the parties often assume that if they share parenting of the children equally, that no child support is payable.
Well, that is not always the case. For example, I have one case where the father earns approximately $250,000 per year and the mother earns about $70,000. In Canada the legislation that deals with child support is called The Federal Child Support Guidelines (they are not guidelines, but rules, actually). In a case like this, because of the greater earnings of the father, the father must pay the mother some child support to ensure that the standard of living in each home is similar.
Child support laws focus on the rights of children. When these parents lived together, this family had a household income of $320,000. Now that they are in two separate homes, it would not be fair for the children to spend half their time in a home with a drastic income reduction compared to how the family lived before.
Another mistake that parents make is that they focus on father’s rights in divorce or mother’s rights. Again you will have to check your jurisdiction, but where I live, there is no such thing as men’s rights in divorce, or women’s rights in divorce. Our law focuses on the responsibilities of parents, not their rights. The rights are all about the children. Our law focuses a lot on children’s rights after divorce.
If you want to negotiate with your spouse directly and you are able to do that, negotiating directly can be a great strategy to assist you in having an amicable divorce, however, make sure you have your foundation for that meeting set by having an initial lawyer consultation. When doing an initial consultation, you don’t have to put the lawyer on an ongoing retainer or anything like that. But you really should know what the law says. Every family is unique and an attorney in your jurisdiction will be able to give you clear advice and direction that will assist you in negotiating.
You are divorcing without a lawyer? No problem. However, for the love of Pete! Make sure that if you have reached an agreement with your spouse, you get a lawyer to draft the separation agreement. Do not cheap out here. Spend a couple or a few thousand dollars to have the agreement drafted by a lawyer specializing in divorce. Why not just pull an agreement off the internet and fill it out? Because it will save you time, money and a lot of grief in the end.
I have seen countless instances where people have saved a few bucks by downloading a template from the internet and filling it out themselves, only to find out that the agreement would later be challenged by their ex-spouse and maybe even set aside by the court.
I am thinking of my client named Josh. Josh separated from his spouse and reached an agreement with her in 2015. He did not want to spend money on a lawyer so he downloaded a separation agreement template from internet, filled it out the best he could, and after negotiating directly with his ex, I will call her Wanda, they both signed it. They owned a house and the house and mortgage was in Wanda’s name. The house was “upside down” because there was more money owed than the property was worth. They reached an agreement that Josh would be responsible for all of their debt, which was a lot, and included the mortgage. Wanda was allowed to live in the house for a year at a significantly reduced rate. When Josh paid out all the debt and able to refinance the mortgage, Wanda was to sign the house over to him.
However, when the year was up, Wanda did not move. Josh was not too worried about that originally because he was working out of town. But then a couple more years passed. Property values in the area skyrocketed. Josh returned from working out of town and approached Wanda to have the house signed over to him as agreed. Wanda refused.
Wanda said that she showed the signed agreement drafted by Josh to a lawyer and the lawyer said it was not “worth the paper it was written on.” Wanda also said she had been bullied into signing the agreement (she lied about that).
The problem was that because Josh wrote the agreement himself, parts of it contradicted other parts. It also had some incorrect information. Wanda used that information to try to say the agreement was not valid.
Josh even tried to settle with Wanda and say they could sell the house and divide the proceeds of the sale after he had been reimbursed for all the debt he had paid. Wanda refused. By this time, five years had passed. Due to the limitation period, Wanda was well out of time to set the agreement aside, but she still refused to sign the house over.
Josh had to go to court. He won and got the house as originally agreed, but it took him many thousands of dollars and years of stress to get there. All of it could have been avoided had Josh had a lawyer draft the agreement rather than downloading a free template for a separation agreement.
This is the third instance where you should hire a lawyer, even if you are divorcing without a lawyer. Don’t end up like Josh. When you get independent legal advice, it bulletproofs your agreement from being set aside. This means that your ex cannot change their mind about the agreement and try to have the agreement set aside later as Wanda tried to do. If Josh and Wanda had each received legal advice on their property division agreement, Wanda’s lawyer would have provided very different legal advice when Wanda changed her mind about the agreement.
Divorcing without a lawyer is no problem, however, if you are going into a contested proceeding like court or arbitration (and even less contested proceedings, like mediation) I fully recommend you retain a lawyer for that process. This is particularly the case if your ex has a lawyer. Showing up unrepresented is a bad idea. Make sure that if you hire one you are choosing the right lawyer of course. You want the best family lawyer for your case to be able to submit the evidence and argument in a succinct and powerful way that gets you the results you are looking for.
I have seen countless “self-represented” litigants over the years getting hammered by the other side because the other side has a lawyer and they don’t.
If you can afford it, this is not the time to cheap out.
As always reach out if you have further questions.
Disclaimer: The content of this website is only intended to act as a general overview of a legal topic and is not legal advice. It is information-based only.
All of the information is prefaced by assuming you live in a “ community property ” and “ no fault ” state, province, country, or territory. This article is written by a Canadian lawyer and has a Canadian perspective. The separation and divorce laws in the United States, Europe, Britain, Australia, New Zealand and other countries are all different.
For legal advice as it pertains to your legal situation, please consult with a family law lawyer in your specific jurisdiction.