Yes! But the question is not can you, but should you?
Are you required to have an attorney? No. The courts in New Jersey and most other states are open to the public; anyone can file his or her own papers for divorce. There are resources available to “pro se‘s” to assist them in filing the proper paperwork and navigating the system. But “should you get a divorce without appropriate professional assistance?” is a far more complex question. Getting a divorce without professional advice — legal, tax, and otherwise — can be very risky.
For those interested in limiting that risk, maximizing their control over the process and resolutions, and protecting themselves against potentially ruinous professional fees, using an experienced, trained mediator accredited by the Association for Conflict Resolution (successor to the Academy of Family Mediators) and/or a statewide non-profit professional organization (like the New Jersey Association of Professional Mediators) is your best option. A qualified mediator will educate you and your spouse about all the issues, as well as the facts and solutions you should consider. A well-done divorce will also make all the difference in your ability to co-parent your children, setting the tone for both of you to go on with your lives.
There are various reasons why people want to avoid attorneys. For example, they have heard horror stories about financially ruinous and unnecessarily acrimonious divorces. This is a healthy fear; the wrong attorney might turn a divorce into a war. It takes two reasonable attorneys and two reasonable parties to settle and adversarial divorce expeditiously and cost-effectively. It only takes one obstreperous attorney (or party) to start a war. Litigation, adversarial by its very nature, is far more likely than mediation to start a war. Mediation’s focus on education, informed decision-making, creative solutions, and cooperative problem-solving allows the parties to maintain control over the process and solutions.
Regardless of what process you use, it is helpful in minimizing warfare if the parties are active participants in the process, making their own decisions after considering professional advice and other information, not leaving it up to the attorneys. However, the adversarial process is less subject to client control than mediation is. The best way to maintain control and avoid disasters is to go to an experienced divorce mediator first. If you use an attorney as well, a good mediator will help direct you to a mediation-friendly attorney and encourage you to make your own decisions considering all the relevant factors according to your own criteria, not just your “legal rights.” Some people facing a divorce fear an attorney will pressure them to resolve issues the way he thinks is correct or the way he predicts a court would. Again, this is a reasonable fear. A good mediator can be helpful, since he will encourage you to make your own decisions, both concerning process and the ultimate issues.
Entering into a settlement in which all issues are not properly dealt with can lead to many problems — sometimes years later, even in short-term marriages with no children which appear to have few, if any, serious issues. Competent professional advice is important, even if the parties aren’t interested in an attorney’s appraisal of how a court would resolve the issues, because they choose to settle issues based on their own values and sense of fairness. A longer-term marriage, unemancipated children, more significant assets (such as a marital home or retirement plans), significant health problems for children or the parties, a history of violence/abuse, and substantial discrepancies between the parties’ incomes are just a few of the indicators which mitigate in favor of professional advice.
Douglas Schoenberg is an accredited divorce mediator (NJPAM), attorney, practitioner member of the Academy of Family Mediators in Summit, NJ.