A new phenomenon is changing the face of family law and altering the way people approach their divorces. More specifically, it is altering the manner in which legal services are provided in divorce law. Under the old paradigm, each party to a divorce hired a divorce lawyer to handle all aspects of the case, giving the family attorney full responsibility and power over strategy and tactics. Today, some clients are demanding, and family lawyers are offering, limited legal services. This means that a divorce lawyer is retained only for specific tasks or limited substantive issues, or even as a “coach” doing little more than showing the client how to represent him or herself.
The reasons for these changes are complex. First and foremost, the court system is breaking down. As presently configured, the courts are simply unequipped to handle the deluge of divorce cases and family-law matters presented to them. Simultaneously, individuals are demanding greater control over their own life choices. This includes not only taking control back from divorce lawyers, but even from the courts themselves. Much is written about the so-called “pro per crisis” in California and in other states, where phenomenally high numbers of family law litigants choose to represent themselves in family court. Sometimes as many as 75% of the cases have at least one side in pro per (the terms pro per and pro se are used interchangeably — they mean a litigant who represents him or herself in court). Frequently these choices result solely from financial necessity. However, in more and more cases, people who can afford divorce attorneys insist on doing it themselves.
This is entirely new ground for both family lawyers and litigants, and they are feeling their way as they redefine the traditional attorney-client relationship. In some states, the situation is complicated by the fact that it is being done under the disapproving eye of the state bar association; in others, it has official endorsement. (Oregon is a notable example, as is the experiment in Maricopa County, Arizona.)
No one wants to be forced to obtain and pay for services they don’t want, simply because some regulatory agency insists upon it. What follows is designed to help you make the best possible decision while alerting you to common pitfalls.
If you’re among those family law litigants who insist on having greater control over the process, increasing the scope of your own involvement and limiting that of your divorce lawyer, God bless. Remember, however, that taking responsibility means precisely that: taking responsibility. Be sure that you’re qualified to perform the tasks you undertake, and then do so. If you want to be the one who makes the decisions about your divorce, you must be prepared to live with the consequences of those decisions, even if they turn out differently than you hoped or expected.
Many pioneering family lawyers are willing to offer limited legal services to help you handle some or all aspects of your own divorce. Does this mean that even with an excellent “coach” you’re going to know as much about divorce law and family law as your family-law attorney does? Of course not. However, if you’re willing to educate yourself on divorce law and the procedures as they apply to your case, and make careful decisions about how much of the legal work you can do yourself and what should be delegated to a specialist, you may be happier with the outcome than with the traditional approach. It does not, however, guarantee that you’re going to get everything you want, any more than you would have under the old system.
Therefore,be honest with yourself and your divorce lawyer about your abilities and instructions, educate yourself where necessary, and delegate to your divorce attorney those tasks or issues that you aren’t qualified to handle. The point is to work as a team with your family attorney to obtain the best possible result.
Are You a Good Candidate for Limited Legal Service?
Yes or No: Are you able to detach yourself enough from the obvious emotional content of your divorce in order to make clear decisions about your property, support or children?
One of the most important functions of family lawyers or mediators in divorce is to superimpose an independent, objective and emotionally uninvolved view of the case. Now, let’s not kid ourselves: of course you can’t be totally uninvolved. It’s your divorce, for crying out loud. But if you can’t at least see that and attempt to separate a logical or financial decision from its emotional content, you simply won’t be a good candidate for limited legal representation. You won’t be able to see when it’s preferable to concede an issue you can’t win and concentrate on one you can. You may go to war and draw a line in the sand over a matter of little overall importance. If you or your spouse has defined a minor issue as the benchmark of the cosmic win/lose dynamic, investing it with lots of emotional baggage, someone has to be around to point that out to you. Otherwise, you’ll just make a fool of yourself and lose credibility with the judge. You must have someone whom you trust, who is knowledgeable about your case, and who can provide an independent perspective for you. (And don’t assume your best friend or a family member can do this for you. First, it isn’t a fair burden to impose on a personal relationship. Second, your friend probably has her own agenda and attitudes about divorce that may not be the same as yours.)
The reality is that if it makes you nuts to have to deal with your spouse over what time the kids are due back from soccer practice, you may not be emotionally equipped to negotiate the bigger issues with him or her. You aren’t ahead if the money you would have spent on legal fees is paid to your therapist instead.
Ideally, you and your spouse both agree that it is in the best interests of all concerned, including the kids, to detach from the emotional content as much as possible. You may not always succeed, but it makes both of you better candidates for unbundling (unbundling is where a lawyer provides some but not all the services of a traditional family lawyer, and you take on the rest of the responsibilities).
Yes or No: Can you handle the paperwork?
Let’s face it: Legal paperwork is technical and confusing. Even lawyers and paralegals sometimes struggle with it. If you really can’t do it, be honest and acknowledge it. You may be able to find a paralegal to draft it for you or you may prefer to leave this on the list of your divorce attorney’s responsibilities. Representing yourself involves not only court forms, complex financial disclosures and expense statements, but business letters, subpoenas, and court orders. In addition, you may have to prepare written court exhibits to prove your side of the case. You won’t win at trial if your “evidence” is a shopping bag full of papers that you rifle through between questions. If your case involves documentary evidence and you aren’t good at organizing it in an orderly fashion, find someone to do this for you. Be realistic: if you’re freaked out by a legal form or agonize for days about writing a simple letter, you’re probably not a good candidate to fill out the disclosures.
Yes or No: Is there history of verbal or physical abuse in your family?
Is your mate used to being in control and having all edicts automatically obeyed? If so, this is not for you. These patterns don’t go away just because you’re divorcing, and you’re likely to be taken advantage of again without a strong advocate in your corner. Think about it: can you effectively stand up for your rights in a settlement meeting when you’re scared to death your mate will ram your car as you pull out of the parking lot (or worse)? If your spouse has been telling you for the last 20 years that you’re stupid, incompetent, and have not had a sensible idea since birth, and you’ve started to believe him or her, are you really going to effectively counter your spouse’s arguments with reasoned defenses of your own? The answer may be yes, but don’t be surprised if, despite the best will (and coaching) in the world, the old patterns reassert themselves. If this is the case, you’re better off leaving the negotiation and court appearances to someone else.
Yes or No: Is your spouse a crook?
Now, you may have answered “yes” because he or she looked elsewhere for love, thereby violating the marriage vows, but that’s not what I’m talking about. That may have nothing whatsoever to do with your ability to represent yourself. If you’re not sure you’re emotionally detached enough to make good decisions about your case, have someone assist you in evaluating your financial estate, support rights, and settlement offers, as well as analyzing the documents. This could be a consulting attorney (who you periodically check in with to make sure you understand your legal rights or court procedures), an unbundled attorney, or someone doing a (traditional) full–service divorce. However, it is essential that you clearly and dispassionately evaluate yourself and your own abilities before assuming that you’re equipped to do the financial analysis without professional assistance.
On the other hand, if the reason you answered “yes” is because your spouse took great pleasure in hiding income from the IRS for 25 years and was infinitely creative in his or her attempts, you’ll probably need to take advantage of all of the protections the law affords. After all, that’s what they’re there for. You certainly shouldn’t take his or her word for where the money is, or rely on your best guess to turn up the missing assets. This also isn’t the best time to try to learn how to draft a technical subpoena to be sure you get the right information. Get help.
Yes or No: Are you comfortable handling financial issues or going through stacks of bank records?
Many people aren’t, and will probably need assistance if they are going to be successful in these areas. In divorce, some of the greatest pitfalls are financial. If you’ve never handled the money in your family, have no knowledge of investments, and are intimidated by financial records, it’s going to be difficult for you to find the missing assets, trace the separate contribution to the joint property, or to assess (or make) a settlement offer, because you just won’t have the skills. This is not a criticism, because many very intelligent people have routinely relied on others to do these things. The point is, however, that if you have relied on someone else (especially your spouse) to do this for you, don’t expect to become a financial planning wizard overnight. Look at it this way: you can learn, but do you really want to practice on your own divorce and risk your financial future? Remember, divorce is at best a period of considerable emotional distress, and it may not be the ideal time for you to acquire advanced training in finance and negotiation.
Yes or No: Are you decisive?
Many of the decisions you’ll be called upon to make during your divorce are irrevocable. You can’t just try on a property settlement for size to see how you like it. The decisions you’ll be forced to make have consequences that are not easily undone, if at all. How frightening is this to you?
Many people have no difficulty making the routine decisions of life, but are utterly paralyzed when required to make an irrevocable decision, or simply commit to a financial course of action. Incidentally, this has nothing to do with intelligence or lack thereof; it’s a function of personality type. If you’re terrified you might make the wrong decision, and always suspect that the other side must know something that you don’t, you’ll probably make no decision at all. That is almost invariably disastrous.
Only rarely do decisions all arise at the same time in a divorce. Typically, you’ll have to make decisions on an ongoing basis as the case proceeds. You can’t always wait to see the “big picture” with all pieces neatly in place before having to commit to something irrevocable. Perhaps the issue is whether to sell the house. If you can’t decide whether to sell the house before you know what the support order will be, but can’t set the support before you know how much money comes out of the house, you’ve got a chicken-and-egg problem. Nothing at all is resolved because you can’t know all the possible consequences. As a result, you might lose the opportunity to craft a good solution.
The point is that if you’re so afraid of making a wrong decision that you make none at all, you’ll undercut your own position at every turn. If you find making decisions distressing, or tend to constantly second-guess yourself thereafter, think twice about trying to go it alone.
Yes or No: Are you good with details and follow-through?
Again, many people are not. They may be great at evaluating the “big picture,” but deadlines and details somehow slip through the cracks. This can be devastating when missing the deadline means you’ve lost the opportunity to present your side of the case to the judge. At trial, you’ll be a sitting duck for a well-organized opponent. As with so much else in life, the rule here is know thyself, and if you aren’t a detail-oriented person, find someone else whose strengths compensate for your weaknesses.
Yes or No: Do you think of yourself as a victim?
If so, don’t even try to represent yourself. I don’t mean to sound insensitive, but those patterns don’t go away overnight. If you answered “yes,” you’ll just be setting yourself up to be a victim all over again, and in spades. Instead, work on the victim thing in counseling. If you get to the point where you feel in charge and want to take responsibility (including responsibility for the consequences if they don’t go your way), then maybe you can take on more of the case yourself later. Similarly, if you look to the litigation process as an
opportunity to “get even” for past wrongs, you won’t be effective. You’ll lack the necessary emotional detachment, and your private agenda will bleed through into every aspect of the proceeding.
Yes or No: Do you have the time?
Most people don’t have a clue how much time it takes to effectively prepare and present a divorce case. They get the attorney’s bill and can’t believe that it took that much time to prepare the motion. Trust me: it will take you ten times as long if not more — at least if you’re going to do it well.
If you have primary responsibility for the children, getting your life in order, coping with the emotional consequences of divorce, possibly retraining or starting a new job and learning the law and procedures, doing the paperwork and preparing your case for trial, guess what is likely to get short shrift? There are simply not enough hours in the day to do it properly under those circumstances.
Suppose you’re the CEO of a major corporation. You’re probably very comfortable making important business decisions, analyzing financial situations quickly and accurately, and taking full responsibility for the consequences. But do you really have the time to do it properly in your divorce? If your work is going to suffer radically, you had better have help. It’s cheap at the price if it keeps you from running your business into the ground because your mind and attention are elsewhere.
Even if you have a very simple case, it may be that you’re just not equipped either emotionally or intellectually, or perhaps you simply can’t afford the time to undertake even part of your own representation. If so, try to make the best decision that you can about hiring a family lawyer and make sure you don’t run up unnecessary costs and fees.(A good resource is my earlier book, How to Avoid the Divorce From Hell [and dance together at your daughter’s wedding] which provides a basic education on what the courts can and cannot do for you, and how to make the best of the system.)
If, on the other hand, you have clearly assessed your strengths and weaknesses, including your ability to take responsibility for the consequences of your own decisions, you might be able to handle some aspects of your divorce yourself.
Who does what?
The following is a partial list of duties and responsibilities that might be apportioned between you and your divorce attorney. It is not exhaustive, for the simple reason that each state and each individual case is different, and if it were complete enough to cover all contingencies, it would be virtually meaningless to you. Therefore, it’s intended to suggest areas that you should explore with your attorney.
When discussing your respective responsibilities with your family law attorney, make a notation as to who is going to take responsibility for each function. Don’t forget, however, that your case may well require evidence and services that are not listed here. Discuss this with your attorney.
This list can then be used as the basis for a written retainer agreement. Note: it is not a substitute for a written retainer agreement. Give yourself one tick if you’ll be doing the work, the second if your divorce lawyer will handle it.
- Who will obtain the financial data (bank records, registers, pension statements, real estate documents)?
- Who will obtain the information regarding custody and visitation disputes?
- Who will obtain income and expense data?
- Do we need formal discovery?
- Who will subpoena records?
- Who will prepare requests for documents and evaluate the results?
- Who will prepare and evaluate Interrogatories? Are depositions required? Who will take them?
- Who will prepare the court forms?
- Motions and responses?
- Affidavits and declarations?
- Who will see that they are prop- erly filed and served?
- Who will analyze paperwork filed by the other side?
- Who will prepare Orders?
- Who will prepare other court documents as may be necessary?
- Who will be responsible for researching the applicable law? Will this include writing briefs and memoranda?
- Who will advise you on the relevant divorce law?
- Strategy and tactics?
- Who is responsible for negotiating with the other side?
- How will you be sure you exchange the information you have both obtained for maximum efficiency and effectiveness?
- Who will appear at hearings?
- Settlement conferences?
- If you’re doing any of this yourself, will your attorney prep you?
- Is there any ethical prohibition of scripting or ghostwriting in your state?
- What other services will your attorney or coach provide you?
- Use of a client library?
- Direction to resources to check at the law library?
Strategy and Tactics
- Who is responsible for setting the strategy of the case?
- If you’re each doing part of it, how will you be sure you’re coordinating sufficiently so that each of you is fully informed of everything you need to know to perform your part effectively?
This article has been edited and excerpted from A Client’s Guide to Limited Legal Servicesby M. Sue Talia. This practical and informative guide provides a common-sense explanation of unbundling legal services, showing you how to limit the cost of your divorce by doing part of it yourself. A family lawyer with 20 years’ experience, Talia is actively involved in promoting legal reform to simplify divorce laws and procedures.