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Can I get a divorce without a
lawyer?
Yes! But the question is not can you, but should you?
Are you required to have an attorney? No. The courts in
New Jersey and most other states are open to the public; anyone can file his or her own
papers for divorce. There are resources available to "pro se's" to assist
them in filing the proper paperwork and navigating the system. But "should you get a
divorce without appropriate professional assistance?" is a far more complex question.
Getting a divorce without professional advice -- legal, tax, and otherwise -- can be very
risky.
For those interested in limiting that risk, maximizing
their control over the process and resolutions, and protecting themselves against
potentially ruinous professional fees, using an experienced, trained mediator accredited
by the Association for Conflict Resolution (successor to the Academy of Family Mediators)
and/or a statewide non-profit professional organization (like the New Jersey Association
of Professional Mediators) is your best option. A qualified mediator will educate you and
your spouse about all the issues, as well as the facts and solutions you should consider.
A well-done divorce will also make all the difference in your ability to co-parent your
children, setting the tone for both of you to go on with your lives.
There are various reasons why people want to avoid
attorneys. For example, they have heard horror stories about financially ruinous and
unnecessarily acrimonious divorces. This is a healthy fear; the wrong attorney might turn
a divorce into a war. It takes two reasonable attorneys and two reasonable parties to
settle and adversarial divorce expeditiously and cost-effectively. It only takes one
obstreperous attorney (or party) to start a war. Litigation, adversarial by its very
nature, is far more likely than mediation to start a war. Mediation's focus on education,
informed decision-making, creative solutions, and cooperative problem-solving allows the
parties to maintain control over the process and solutions.
Regardless of what process you use, it is helpful in
minimizing warfare if the parties are active participants in the process, making their own
decisions after considering professional advice and other information, not leaving it up
to the attorneys. However, the adversarial process is less subject to client control than
mediation is. The best way to maintain control and avoid disasters is to go to an
experienced divorce mediator first. If you use an attorney as well, a good mediator will
help direct you to a mediation-friendly attorney and encourage you to make your own
decisions considering all the relevant factors according to your own criteria, not just
your "legal rights." Some people facing a divorce fear an attorney will pressure
them to resolve issues the way he thinks is correct or the way he predicts a court would.
Again, this is a reasonable fear. A good mediator can be helpful, since he will encourage
you to make your own decisions, both concerning process and the ultimate issues.
Entering into a settlement in which all issues are not
properly dealt with can lead to many problems -- sometimes years later, even in short-term
marriages with no children which appear to have few, if any, serious issues. Competent
professional advice is important, even if the parties aren't interested in an attorney's
appraisal of how a court would resolve the issues, because they choose to settle issues
based on their own values and sense of fairness. A longer-term marriage, unemancipated
children, more significant assets (such as a marital home or retirement plans),
significant health problems for children or the parties, a history of violence/abuse, and
substantial discrepancies between the parties' incomes are just a few of the indicators
which mitigate in favor of professional advice.
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