A reader asked: “Can I get divorced without a lawyer? My husband and I agree on almost everything in our divorce. All we really have is a house (…and a lot of debt!) I’m going to keep the house and refinance it in my name. My husband lost his job and went back to school. So, he’ll keep living with us until he graduates and gets a job. I’ll pay off a big chunk of the debt with the money I get from the refinance. To save money in our divorce we plan on using a mediator. So, we don’t need a lawyer, right?”
My answer to: “Can I get divorced without a lawyer?”
I hate to be the bearer of bad news, but…No, you absolutely need a lawyer!” … and I’m not just saying that because I am a divorce lawyer.
What Divorce Lawyers Know That You Don’t
A big part of the reason divorce is so expensive is because of the lawyer’s fees. So, it’s natural to want to avoid using divorce lawyers if you can. What most people don’t think about, though, is what it will cost them to fix the problems that arise after their divorce is over if they don’t do things properly the first time!
In almost every situation, avoiding a problem is less expensive than fixing it.
Divorce lawyers are trained to see the potential problems in any situation. While that doesn’t make us much fun at cocktail parties, it does make us your “go to” person when you want to stay out of trouble.
For example, in the situation above, how long is this woman going to let her ex husband live with her? What if he doesn’t graduate on time? What if he graduates, but doesn’t get a job?
Is she going to pay her ex alimony? Who is going to pay child support? How much child support will be paid? Did anyone do the calculation to find out what SHOULD be paid?
What is the schedule with the kids going to be like? What’s it going to be like once her ex moves out? How do they know the schedule will work? What will they do if it won’t?
If she takes money out of the house, her mortgage payment is going to go up. Can she afford to pay that AND keep paying all the other bills for everyone (including her ex-husband) in the meantime?
What happens if she wants to start dating and she’s still living with her ex-husband?
Those are only SOME of the questions a good divorce lawyer would ask, and why my answer to her question: Can I get divorced without a lawyer? is NO.
While a mediator might raise some of the same questions too, there is a fundamental difference between divorce lawyers and mediators.
The Difference Between Divorce Lawyers and Mediators
Divorce lawyers and mediators serve very different functions in your divorce.
1. A divorce lawyer is an advocate. S/he will fight for a client, both in negotiations and in court. A lawyer will educate and advise a client about the law. S/he will also try to make sure that his/her client will get the best deal possible under the law given the circumstances in the case.
2. A mediator is a neutral facilitator. S/he doesn’t represent anyone and can’t give either you or your spouse legal advice.
3. A mediator’s job is to help you and your spouse talk about your issues and reach an agreement. The mediator can’t force you to make an agreement. S/he also can’t advise either of you whether the agreement you made is good or bad.
4. A mediator also can’t draft legal documents – even if the mediator is also a lawyer. (Or, at least, that’s true in Illinois, and in most other states.) The ONLY document the mediator can draft for you is your mediated settlement agreement. While that agreement is important, there are a LOT more documents that you need to complete besides the settlement agreement in order to get divorced.
Only a lawyer can draft those documents for you
Why You Need a Divorce Lawyer Even if You Mediate Your Divorce
The purpose of mediation is to help you and your spouse come to an agreement outside of court. But you can’t possibly make a reasonable agreement unless you know what your legal rights and responsibilities are BEFORE you agree to anything. Because a mediator must stay neutral, s/he can’t advise you about your rights and responsibilities.
That’s where a divorce lawyer comes in.
That’s also why consulting with a divorce lawyer BEFORE you start mediating your divorce is so important. If you don’t do that, you can’t possibly know what you’re doing in your mediation. When you don’t know what you’re doing, your much more likely to make agreements that you’ll regret later.
What’s even worse is that, if you take your mediated settlement agreement to a lawyer after you’ve already negotiated it, and the lawyer finds issues with it, then you’ve got a huge problem on your hands.
Changing your agreement AFTER your spouse thought it was final rarely goes well. No matter what you say, your spouse will probably think you’re trying to renege on the whole deal. Even if your changes are perfectly reasonable, at that point, it’s often tough to get your spouse to agree to them.
The Bottom Line
Mediation is a fabulous way to resolve your divorce. For the most part, mediation is less expensive and less confrontational than going to court. It’s more private.
But just because mediation is a more amicable and affordable way to get divorced, that doesn’t mean that you can go through it without knowing what you’re doing.
In other words, “Can I get divorced without a lawyer?” is a question with a firm answer of “no.” No matter how you go through your divorce, it is full of legal and financial landmines. Having good legal advice is the key to navigating around those landmines, even through mediation.
Karen Covy is a divorce attorney, advisor, mediator and coach who is committed to helping couples resolve their disputes as amicably as possible. She is also the author of When Happily Ever After Ends: How to Survive Your Divorce Emotionally, Financially, and Legally. Karen has been featured on the Channel 7 News, WCIU You and Me This Morning, WGN Radio, MarketWatch, The Goodmen Project, and numerous other radio shows, publications, and podcasts. You can find her articles on The Huffington Post, Divorced Moms, Divorce Force, GUYVORCE, and Your Tango, as well as on her own website at karencovy.com.