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April 2024When meeting with an individual who is contemplating a divorce, I can always sense that they are wondering if they need an attorney. So, they look at alternatives. I am of the opinion none of these alternatives are advisable.
A trend has developed where attorneys will market themselves as Family Law Collaborators. They offer a Collaborative Divorce. In other words, they believe that both parties can hire one attorney and that individual will assist them in concluding their divorce.
Another alternative is the parties simply go at it alone. I have been retained in numerous cases where the parties attempted to save money by going at it alone. Many times, the paperwork they filed to obtain their divorce is faulty. This then causes one or both parties to suffer financially where they otherwise wouldn’t. I’ve been retained on numerous occasions attempting to reopen and modify Judgements of Divorce to fix mistakes.
While it might not surprise anyone that an attorney, such as myself, counsels against using one attorney or going it alone, I believe each party should hire their own attorney. I make this recommendation solely upon an interest to see parties treated fairly and not to increase my caseload.
Divorce is an extremely stressful, life altering, event. Making a mistake as a result of the parties going at it alone, without counsel, can multiply immensely the distress otherwise involved.
Most potential clients come into my office indicating that they desire an amicable divorce. They indicate that they and their spouse agree to “everything.” They do not want to have disputes over anything. I recognize that this is the wish of nearly every couple facing the prospect of a divorce. No one wants to get into heated and expensive disputes. So, promises are usually made early on that this will not occur.
While I have seen some divorces proceed in a very cooperative way, issues typically do crop up before it is final. Issues can involve maintenance to a spouse, decision making for the children, placement of the children, division of assets, division of debts, and what to do with the marital residence. Wisconsin law regarding each of these categories can be complicated. If an attorney is not involved, mistakes can be made. These mistakes can have an incalculable effect on one or both of the parties. If that party is you, I can assure you that you will regret proceeding without counsel. You would much rather have incurred legal fees rather than suffering the significant financial ramifications of going without that expense.
Some couples believe that paying a single attorney to assist them both is a good way to save money. These are called Collaborative Divorces. The name sounds reassuring. It offers the prospect of the parties amicably coming together to work towards a fair conclusion to the marriage. The attorney involved offers their services to simply dot the “I’s” and cross the “T’s.” However, that rarely is what the parties feel occurred after the divorce is final. It is not unusual for a party in this process to believe they may have been taken advantage of. This can occur for two reasons.
First, in that they did not have an attorney representing solely their interests, numerous options available to them as a party to the divorce are not disclosed. Without intending to, they waive certain benefits that they had no idea existed.
The second way involves the attorney assisting in the Collaborative Divorce. Despite that attorney’s assurances that they are neutral, and will not favor either side, they are human. I believe it is nearly impossible for an attorney experienced in family law to, without emotion, advise the parties. I believe the attorney acting as the collaborator either subconsciously, or consciously tries to achieve a result that they believe is “fair.” However, what is “fair” to that attorney may be “unfair” to one or both parties. As a Collaborative Attorney, they are unable to explain to each party this situation. The parties go along and conclude the divorce without being aware that one of them has been provided a benefit at the expense of the other.
The bottom line is that each party retaining their own attorney is the best, most cost-effective way to conclude a marriage. If each party has an attorney, those attorney’s will be able to communicate as experts in the field, focusing on the real issues rather than other matters which will not affect the outcome either way. I have explained to my clients on numerous occasions that the involvement of an attorney for their spouse is a good development. That attorney will explain to the spouse, if necessary, that many of their wishes will not be met. That attorney will be able to reign in the emotional reactions to the divorce that a spouse may develop. That only creates more controversy and expense without any real benefit.
Also, if both parties have an attorney, there is no delay in communication. When one party has an attorney and the other does not, it is universally difficult to communicate with the other spouse and receive some type of useful response. This only serves to drag things out and increases the legal expense.
Just as no reasonable and intelligent person would attempt to perform surgery on themselves, no reasonable and intelligent person should take it upon themselves to navigate the complicated area of family law. Relying on one Collaborative Attorney to do what is best for both parties is similarly unwise. While at first, hiring lawyers may seem excessive, the savings and benefits that will result from doing so will make proceeding in other ways unwise as well.
Divorce is hard enough, without good representation of a party’s interests. Forfeiting that benefit for a perceived savings does not make sense.
McLario, Helm, Bertling & Spiegel, S.C.
N88 W16783 Main St.
Menomonee Falls, WI 53051-2890
Tel: (262) 251-4210
McLario.com
