In this episode: Do you need a divorce attorney, or can you and your spouse handle it yourselves? Jon Peyton compares a pro se (do-it-yourself) divorce with hiring counsel, explains what to look for in a family law attorney, and shares how he and his ex used an attorney only at the very end.
Key insights
- There are really two paths: a pro se divorce you file yourselves, or one where one or both of you hire attorneys.
- Pro se can save thousands, but it’s risky if either spouse is hiding assets or income. Once the documents are signed and filed, reopening the case is hard without proof of wrongdoing.
- Look for an attorney who focuses on family law, makes you feel heard, and has both settlement and trial experience.
- You can ask that legal fees come out of each spouse’s own share of the settlement, so one side’s spending doesn’t come out of yours.
- Hiring an attorney doesn’t mean you stop talking. The more you settle between yourselves, the lower the cost.
Episode timeline
- 0:00 Introduction
- 0:30 “My attorney will call your attorney”: TV versus real life
- 1:34 The two paths: pro se or hiring an attorney
- 2:00 What each path tends to cost
- 2:18 The real question: will this be amicable?
- 2:44 When pro se gets risky
- 3:41 Why it’s hard to go back to court after you sign
- 4:35 What to look for in a divorce attorney
- 6:23 Running the numbers on legal fees
- 7:15 Asking that fees come out of each spouse’s share
- 9:03 Which path fits your situation?
- 10:20 Jon’s own divorce: an attorney only at the end
- 12:59 Keep talking, even with attorneys involved
- 13:52 Focus on what’s in front of you
The episode in brief
Lawyering up isn’t a TV show. “My attorney will call your attorney” makes for good drama, but most divorces follow one of two paths. In a pro se divorce, the two of you get the paperwork from the courthouse, fill it out together, reach your own agreement and file it. Court fees might run from a couple hundred dollars to about a thousand. Hiring attorneys usually means spending thousands, sometimes tens of thousands, depending on how the divorce goes.
The deciding question is trust. Can you and your spouse reach a resolution on your own, without either of you trying to take advantage of the other? If so, pro se may work. If one spouse is hiding assets, covering up income, or counting on the other to go along just to get it over with, pro se becomes risky.
Signed is usually final. Once the documents are filed, it’s very difficult to go back to the court and say you got it wrong. Unless you can show something improper happened, such as hidden assets or hidden income, the agreement stands. That’s a big part of why people bring in attorneys.
How to choose an attorney. Jon suggests four questions:
- Does this person focus on family law, or split their time across estate, criminal and other practice areas?
- How do they make you feel? Do you feel listened to and supported?
- Will they fight for you? If the divorce is contested, do they have real trial experience?
- What will it cost, given their experience and how often they settle versus go to trial?
Weigh the fee against what’s at stake. Spending $50,000 or $100,000 may make sense when millions are being divided. It may not when the marital estate is a few hundred thousand dollars.
Who pays the legal bills. Jon describes asking for legal fees to come out of each spouse’s own share of the settlement. With $500,000 split evenly, each side starts at $250,000. If you spend $10,000 on your attorney, you net $240,000. If your spouse runs up $100,000, that comes out of their half, not yours. Depending on income and assets, a spouse with fewer resources may also ask the court to have the other spouse cover their fees. Your attorney can tell you what’s available where you live.
Pick the path that fits. Ask yourself whether you’d co-parent better, stay friendlier, or be at risk of being misled under each approach. If you expect hiding, lying or a fight, an attorney is likely the better choice. If you both want to stay on good terms, pro se may work.
Jon’s own experience. He and his ex filled out the paperwork together and brought in an attorney only at the end to review everything so the judge would accept it. That review cost about $1,000.
Keep the lines open. Hiring an attorney can make the other side feel attacked and lawyer up defensively, and that’s often when things go off the rails. Even with attorneys involved, keep talking with your spouse. Every issue you settle directly is one the attorneys don’t bill for.
One step at a time. Thinking about steps three through seven at once is overwhelming. Focus on the decision in front of you.
Key action items
- List what’s at stake. Write down the major assets, debts and income in the marriage so you can weigh legal fees against what’s being divided.
- Be honest about trust. If you have reason to think your spouse is hiding assets or income, plan to work with an attorney rather than file pro se.
- Interview more than one attorney. Ask about their family law focus, settlement and trial experience, and expected costs.
- Ask about fees. Ask your attorney whether legal fees can be charged against each spouse’s share, or whether the other spouse can be asked to contribute.
- Even pro se, get a review. Have an attorney check your paperwork before it’s filed.
Listen next: Episode 8: Divorce. It’s a Process
Jon Peyton previously held the Certified Divorce Financial Analyst® (CDFA®) designation and no longer holds it. References in this episode reflect his credentials at the time of recording.
This episode is educational and isn’t legal, tax or financial advice. Speak with your own attorney and advisers about your situation.