Wednesday, March 20, 2013

Divorce – Do I Need An Attorney?

Divorces require time and attention, and can therefore lead to substantial attorneys fees.  Many parties work out many of the details of settlement on their own and question the necessity of hiring counsel.  After all, a party is permitted to file and proceed in obtaining a Final Decree of Divorce pro se, or “for oneself.”   The answer, therefore – much like the process itself – is not a simple one.  There is not a “one size fits all” solution.  Parties dealing with particular issues or living in particular jurisdictions (even within the same general geographic area) may “need” counsel more than others. 

Understand first that simply because both parties agree they want a divorce, a matter is not rendered “uncontested.”  If the parties disagree on any of the issues that the Court must determine in a divorce proceeding (e.g., property distribution, spousal or child support, child custody/visitation) then the case is not uncontested.  Even if parties are only arguing over whether Mr. or Mrs. gets to keep the engagement ring, the divorce is not uncontested.  What also occurs quite often is that parties agree on all of these matters, but one party will not actually sign a settlement agreement or Final Decree of Divorce setting forth the agreed upon terms.  This too is not an uncontested divorce. 

Where matters are  truly uncontested (involving parties who have settled all matters and have done so in writing), the filing party may nonetheless be living in a jurisdiction with stringent requirements for the content of Final Decrees or  other complex procedures or docketing practices that render it preferable, even if not necessary, to have counsel handle finalizing the divorce.   Finally, in certain cases, there may be unique complicating factors, such as a need to serve one’s spouse out of state or by publication.  So, although every jurisdiction in Northern Virginia provides a pro se divorce package containing the tools needed to complete most, simple, uncontested divorces.  Whether those tools can be used in your case is another question: 

If one’s case is fully uncontested -- meaning that there are no disputes regarding the existence of “no-fault” grounds for the divorce (i.e., six months’ separation with written settlement agreement and no children, one year separation otherwise); property distribution (i.e., everyone is satisfied with who is taking/keeping what); child custody & visitation; child support or spousal support, or no such issues exist (no children, no marital property) -- pro se might be the way to go.   In either case, the Plaintiff would indicate in his/her Complaint  for Divorce the status (e.g., there are no issues of equitable distribution, custody or support, or the parties have signed an agreement settling them all) and if agreed, the opposing party would “admit” (i.e., concede, agree with) that allegation in his/her responsive pleading OR waive the right to file a responsive pleading altogether.  If in fact some or all of those have been resolved, rather than do not exist, one must be sure that all agreed upon terms regarding children, support and/or property distribution have been reduced to writing in a settlement or separation agreement, or at least into the Final Decree to be submitted to the Court, before you ask the Court to finalize a divorce.  Courts will not simply divorce parties with children, for example, without addressing custody, visitation and support in the Final Decree, even if merely by reference to a written agreement. 

BOTTOM LINE:  If you’re going to go it alone, do it carefully, and it’s still a good idea to sit down for a brief consultation with a RRBMDK family law attorney to make sure that your case is ripe for filing, that you’ve addressed all potential issues with your spouse, that your ducks are in a row as far as filings and service, and that there don’t appear to be any complicating factors related to your case or unique to your jurisdiction.