Judge Lynn Toler, a graduate of Harvard and The University of Pennsylvania Law School, served as a municipal court judge for eight years. She presides over the courtroom on the nationally syndicated television show Divorce Court and is the author of the book My Mother’s Rules, a guide to greater emotional control.

Advice from Judges

More and more frequently, divorcing couples are going it alone. And I don’t mean they are going on without each other. I mean they are divorcing without a lawyer.

Take Maricopa County, Arizona, for example (it encompasses Phoenix, where I live). In 1980, almost 80% of the County’s divorces involved lawyers. A decade later, the number of counsel-accompanied divorces dropped to less than 50%. This trend is countrywide, and money (or more accurately, lack thereof) is one of the primary causes. To many, hiring a lawyer is a financial impossibility. So they go it alone, a practice known in legal circles as pro se.

In response, many jurisdictions have made the process more user-friendly. Simpler court forms and processes are popping up all over. These changes, notwithstanding navigating the court system, can still be quite perplexing. What if you find the forms confusing, or if you’ve filled them out but aren’t sure they are correct? What if you have to appear in court and the very thought of speaking in public, not to mention in front of a judge, causes you lose your breath? What if you don’t know whether or not a certain fact is important or whether the law supports your position with respect to a particular asset? Isn’t there a way to get a little help without handing over your entire case to a lawyer?

More and more, the answer to that agonizing question is yes. But it hasn’t always been that way. Generally, courts have viewed litigants as either represented by counsel or pro se. When a lawyer took a case, he was responsible for all of it. Since they normally charge on an hourly basis, this can be quite expensive, making legal assistance out of the question for some. Recognizing this, courts are becoming increasingly open to permitting attorneys to provide services on a limited basis. It’s known as Discrete Task Representation, Limited Scope Legal Assistance, or more simply, unbundled legal services.

Using unbundled legal services is like dining a la carte. It allows you to get a lawyer’s assistance on an “as needed” basis. For instance, a lawyer could help you prepare necessary court filings, help write legal briefs, or simply serve in an advisory capacity. They can answer questions about the process or explain how the law views certain assets or support issues. They can explain the potential pitfalls and problems you might encounter. The lawyer can also point out the strengths and weaknesses of your case or certain aspects of the law.

Even if you feel comfortable filling out your own forms, unbundling would allow you to hire a lawyer to review them and make sure that you have prepared them correctly. It would also allow those intimidated by court proceedings to hire a lawyer to appear in court for them. Retention for the sole purpose of legal research is common in unbundling as well.

As with all things, there are some drawbacks to this kind of representation. First, not all states and provinces allow unbundling. While it is gaining in popularity, some courts are still concerned about ethical considerations. Second, if you can use unbundled services where you live, you still have to find a lawyer experienced in both divorce and limited scope representation, so they can adequately explain its risks and benefits. Last, unbundling presents a real risk that things can fall through the cracks. With full representation, the lawyer has an ethical obligation to examine the matter thoroughly, understand it, and proceed appropriately. If hired for only limited services, he or she is only responsible for that discrete portion of the case he was asked to handle. All remaining responsibilities rest on your shoulders.

Pitfalls notwithstanding, it is an option that allows some people, who would not otherwise have the means to hire a lawyer, access counsel and some meaningful assistance. You can check with your local bar association, or search “unbundled legal services” and your state’s name on the Internet, to find out if unbundling might be something you can use for your case.

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