Perhaps you believe that you do not need a divorce lawyer because you and your spouse are only having minor marital problems and are nowhere near the point of no return. Or perhaps you think a lawyer is an expensive and unnecessary luxury because you and your spouse agree about getting a divorce. Or maybe you think a lawyer would be a waste of money because you have no children. Or because you are willing to give up whatever is necessary just to get divorced. Or your spouse signed a prenuptial agreement giving everything to you. Even under these circumstances, it would nevertheless be prudent to have an attorney.
If you feel as though your marriage could be on the rocks, do not wait for certain disasters before finding a lawyer. I was so intent upon saving my Wedding that I failed to even consider the possibility that I would need a divorce lawyer until things got so bad that I had to leave home. With 2 small children and nowhere to live, I did not have the luxury of interviewing lawyer candidates in a careful and methodical way.
I was in the middle of a crisis. Because I hadn’t planned for an eventuality I considered too dreadful to contemplate, I paid the price. Had I consulted lawyers before I truly required one, I believe my divorce would have been much less stressful. Had I been represented by competent and caring counsel from the beginning, I would have had only one problem to deal with with my ex. As it was, I had to deal not only with him but also with the problem of finding a decent lawyer.
Another benefit of finding your divorce lawyer before you are even sure you want a divorce is that you just will get a pre-separation recommendation. Your lawyer can show you ways to protect yourself financially and protect your kids from as much disruption as possible. For example, had I known about the domestic violence laws in my state, rather than fleeing with my children, I might have been able to exclude my then-husband from the house.
A lawyer can suggest ways to organize your finances so that, should a separation occur, your spouse won’t be able to gain economic control over you by “cleaning you out.” Once you and your spouse are on the verge of a divorce, it’s often too late to take precautionary financial measures.
Even if you both agree to be divorced, and even if you have no kids, you and your spouse will have to divide up your assets and bills. If either of you has a retirement fund, the other may be entitled to part of it. If you have joint credit, you may be responsible for each other’s debts. If you have a house, you will have to decide who will stay and how the mortgage payments will be made. If you sell the house,
Who will pay the capital-gains taxes and how will the proceeds be divided?
One of you may be entitled to alimony or support from the other, which could be a significant sum of money over a long period of time. Even if you and your spouse have a prenuptial agreement, what it means may be open to debate and it may not be legally binding. You want an attorney to recognize these and other issues and explain them to you.
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Even if you and your spouse foresee all the possible issues and agree on all the answers, you will need a legally enforceable settlement agreement to make sure neither person changes his or her mind later and comes back asking for more. Moreover, some things to which you are willing to agree may not be legal. For example, if your spouse says, “Give me custody of both kids and I will never ask you for child support,” you could be making a mistake if you agree. In many jurisdictions, a parent can’t legally waive child support. You could very well wind up losing custody and paying child support, all because you didn’t know your legal rights.
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Even if you and your spouse manage to reach an agreement without resorting to the courts, you will need lawyers to reduce the agreement to a legally enforceable document. If your settlement is not in the proper legal form or is otherwise invalid because of a technicality, you or your spouse might be able to come back later and raise all these issues anew. This is one situation in which an ounce of prevention is definitely worth a pound of cure. Get your agreement in writing, and have your attorney review it to form certain it’ll stick.
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Once the wheels of divorce litigation start to turn, you jeopardize your living arrangements, your finances, and your status as a parent. The court has the power to take everything away from you and give it to your spouse. The job of your spouse’s lawyer is to find reasons for the judge to take these things from you.
Suppose you are well educated, you do not drink or use d-rugs, and your life consists of going to work to support your family and then coming home to take care of your children. You do not carouse or go to the track. You are truly a family People with family values. Then one day you learn that your spouse is having an ongoing affair and you file for divorce and custody. You never even consider the possibility that you could lose custody of your children.
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Think again. Ms. A., a political lobbyist, lost custody of her daughter in just such a situation when a judge found that her career had more of a deleterious effect on the marriage than the husband’s adultery. The little girl lived with the adulterer until she was old enough to hire a lawyer of her own and petition for a change of custody.
Although men have for a long time faced an uphill battle when it came to getting custody (or even joint custody), now women face the same, perhaps even more difficult, hurdles. Legal commentators speculate that the more successful a woman is in her profession, the more that fact will be used to demonstrate her unfitness as a parent.
Senator Orrin Hatch’s chief of staff, Sharon Prost, lost custody of her sons after just such an argument was made against her.* O. J. Simpson prosecutor Marcia Clark was the target of a similar attack when her husband claimed that her job interfered with her ability to raise their two sons.**