Do I Need an Attorney to Get Divorced?

While spending money on attorney fees for a divorce or custody matter may seem about as enticing as paying a dentist to perform a root canal or an accountant to prepare your tax return, even “simple” divorces often involve matters requiring some expertise.

Every case is different, so it is always a good idea to consult with a knowledgeable attorney to discuss the specific facts of your case and your individual situation to determine what approach is right for you. These are three common questions those looking to cut costs often ask:

Q:

My spouse and I agree on everything; do we really need to involve attorneys?

A:

The short answer: no, you don’t need to retain an attorney to obtain a divorce; you can technically represent yourself. Parties choosing to represent themselves are called “pro se” or “self-represented” litigants. Many states, including North Dakota and Minnesota, even offer selfhelp forms for those wishing to try and figure things out without the assistance of legal counsel. However, as a point of caution, if a person elects to represent themselves, they are generally held to the expectation they know and understand the applicable laws and court rules. In addition, self-help forms logistically cannot provide for every factual situation, and are not guaranteed to be up to date with the current status of the law.

Q:Can my spouse and I jointly retain one attorney to assist with handling the divorce?

A:

Initially, the idea of retaining one attorney to handle a divorce for both parties may seem like an attractive (and cost-saving) option, particularly if you feel there is agreement on most issues. However, dual or joint representation in a matter such as divorce is generally not advisable, even if you found an attorney willing to represent both parties. Ethically, attorneys are bound to advocate for and provide legal advice for the benefit of their clients. This can quickly turn into a problem if the parties later disagree on any issue. Take for example the issue of spousal support. If Spouses A and B initially agree that A will pay B spousal support in an amount of $1,000 per month for 10 years and then later Spouse A decides that amount feels like too much, this leaves the attorney in an ethical conundrum on which spouse to push on the issue, and how to advise each spouse on the status of the law and likelihood of success for each spouse on the issue. Once the parties’ positions are adverse on even one issue, it is easy to see why joint representation is problematic.

Another option which appears to be growing in popularity is some attorneys provide limited or “unbundled” services to be retained to provide representation on a limited scope or basis. This can be a good choice if you are just looking for someone to draft certain documents or offer advice on limited issues such as how to transfer retirement funds between spouses without incurring unnecessary penalties or tax liability.

Q:We don’t agree on everything but want to avoid involving the court in resolving our issues — what other options are there to resolve disputes?

A:Both Minnesota and North Dakota court systems offer various alternative dispute resolution/mediation options to assist with resolving disputes in custody and divorce matters. The cost for these services varies. For example, in North Dakota, the Family Law Mediation Program provides up to 6 free hours of mediation for disputed parental rights and responsibilities (“custody”) matters with the option to pay a reduced hourly fee for additional time if needed. In Minnesota, Early Neutral Evaluation programs provide accelerated evaluative impressions from professionals on issues including custody, parenting time and financial disputes. The cost for these services is on a sliding-fee scale based on income.

Parties can also reach a resolution or settlement through negotiating matters directly through their attorneys or hiring a mediator from the private sector.

Morgan L. Croaker is an associate attorney with the Serkland Law Firm in Fargo. She practices primarily in the areas of divorce and family law. For more information, call 701-232-8957, email mcroaker@serklandlaw.com or visit serklandlaw.com.

This article should not be considered legal advice and should not be relied upon by any person with respect to his/her specific situation.