DO I NEED AN ATTORNEY FOR A DIVORCE?
Deciding to divorce a spouse is an incredibly difficult decision and involves many considerations – emotional, legal, religious, social, and many others. After deciding to divorce a spouse, the next step is deciding whether you should hire an attorney. This also may be a difficult decision, influenced by many factors and considerations. When determining if you need to hire an attorney to protect your interests during divorce proceedings, consider some of the information below.
Basic Considerations: In deciding whether you should hire an attorney, you should approach the decision like you would when hiring any professional. First, you have to determine if you have the skills needed to complete the task on your own. Not every case requires the complete knowledge and skill of a lawyer, just as not every car repair requires the full skills of a mechanic. However, the law can be different from these other skills. The tricky part of legal problems is that what you need to know and what you need to do to get the result you want can be difficult to guess. You may know the result you want and, perhaps, you even have the skill to obtain the result. However, there is danger that lies in the unknown.
In most other fields, assuming you do not need a profession involves low risk. If you fail to change your oil by yourself, you can take it to a mechanic to have him fix the problem. Legal mistakes are not so easily fixed once made, due to finality and waiver. Finality means you only get one chance to solve a legal problem. Once a court has made a decision on your problem, you cannot try again if you do not like the outcome. In divorce, this means that you will be stuck with whatever you were able to obtain for yourself, the amount of spousal support, the amount of child support, and the division of property. Waiver can have even more devastating effects. During a legal action, like divorce, a party must play every card 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. Once waived, it is gone forever. Hiring a lawyer after something is waived will not fix the mistake. Finality and waiver present many risks in legal proceedings, and these risks are not likely ones you want to take, given that your home, your property, your money, and even your children are at stake.
Other Considerations: In addition, the specific circumstances of the divorce should be considered. Most importantly, does the other side have an attorney? When your spouse hires an attorney, the dangers of representing yourself multiply ten-fold. In American courts, judges are not advocates for either party, instead they are required to be moderators and decision-makers. Each party is responsible for identifying what they want, how the court can give them what they want, and why the law allows for that outcome.
This may seem simple enough to do but consider the following example. Suppose something major comes up on a scheduled court date, like a funeral. You want to move the court date to another day, but you cannot just call the court to ask for a change – that would be inappropriate. Instead, you would need to file a motion for a continuance under § 60-240, complying with all Kansas Rules of Civil Procedure and all local court rules. However, that is not all, the other side may object to your motion, and the court will have to determine who is right. You will have to provide law that says you are entitled to the result you are seeking because courts rest on legal authority, rather than common sense. If your spouse has an attorney, you are at a major disadvantage, even in simple matters like changing your court date.
If your spouse is representing themselves, it is important to consider how amicable the divorce will be. If there are disagreements, self-representation will not be a viable option. The courtroom is a place of law, and you must use legal reasoning, not common sense or emotional appeal, to demonstrate to the court why you should get the result that you desire. If you and your spouse are fighting over property divisions, support amounts, or other parts of a divorce, it is less likely that you will be able to present legal arguments in the heat of the moment. Even if the divorce is amicable and uncontested, it is important to consider if it will remain that way throughout the entirety of the divorce proceedings. When it comes down to it, will your spouse actually agree to let you stay in the marital home or pay you the equity that you have put into the house? Amicable divorces can quickly turn hostile when disagreements arise. Having an attorney will help you navigate the legal aspect of the divorce, but, perhaps most importantly, an attorney will provide you with an outside perspective, free from the emotional ties that both parties have.
Deciding not to hire an attorney is a huge decision that should not be made lightly. Even if getting what you want seems easily obtained, knowledge and experience with the law are the only things that will ensure you succeed in court. Contacting an experience attorney is imperative because the attorney will be able to identify issues you may be unaware of and will protect your best interest throughout the entire proceedings. This is important because there is only one shot at divorce, and the results will last years to come. This means you could have a life time of living with even a simple mistake.