Sunday, September 14, 2008

Should I Hire an Attorney?

Coming from an attorney, you would expect the answer to be "yes". That is generally my answer, although I have changed positions on it over the years. Many years ago, I sometimes thought it was not necessary for someone going through a "simple, uncontested divorce" to use an attorney. That may have been true is some cases 25 or 30 years ago, but as family law statutes have become more complex and encompassing, the need for attorneys grows greater. Most divorces now are neither simple nor uncontested.

In addition, if you are interested in using Collaborative Law to resolve your divorce or other family law issues, each party must have his or her own attorney.

While some people cannot afford to hire an attorney, most people can find the funds to pay for an attorney. It may require going to parents, siblings or other relatives, even if you don't really want to. It might mean a bank loan, a loan from a 401K account or a credit card advance. Whatever the source, using an attorney will likely lead to a better result for you.

What can go wrong without an attorney? Many things.

  • You may overlook an asset to be divided. Retirement accounts are sometimes omitted if an attorney is not involved.
  • You may not aware of the proper way to divide some assets. For example, a qualified domestic relations order will divide a retirement account and provide for direct payments to the non-member spouse.
  • You may not properly value some assets.
  • You may trigger tax consequences that are unnecessary. Cashing in an IRA to divide it will cost taxes and penalties, and that can be avoided.
  • You may assume that all assets should be sold and then the cash divided. Wrong!
  • You may assume that the division should be 50-50. Not necessarily.
  • You may create an unenforceable order for child support or visitation. Using the proper language is essential.

Those aren't all the potential problems, but they should give you at least a superficial idea of the dangers of divorcing or dealing with other family law matters without an attorney.

If you now accept that hiring an attorney is likely to benefit you, I would suggest this caveat: Research the prospective attorneys. I have previously written (here) about how to select an attorney and I recommend that you look at that post as well. Make sure you feel compatible with the attorney and that you can communicate well with him or her. Also, make sure the attorney fits financially with your situation. There are many quality attorneys around. Most attorneys will be happy to suggest other attorneys for you if you (or the attorney) believe the cost might be out of your budget range. Be sure that you don't over commit at the outset and leave yourself without the funds to pay future expenses. It is a much wiser decision to find an attorney who is also in your price range. Good attorneys are available in various price ranges.

For additional thoughts about this issue, I recommend a post from an excellent blog I just discovered by Jennifer R. Lewis Kannegieter of Minnesota.

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