Why Representing Yourself in a Divorce is a Terrible Idea by 7 Top Family Lawyers
Seven Top Family Lawyers Share the Dangers of Representing Yourself in a Divorce. Is it bad to represent yourself in a divorce? Is it smart to represent yourself in divorce court? Do I need a lawyer for divorce? Representing yourself in your divorce and custody case.
Q: Why is Representing Yourself in a Divorce a Bad Idea?
Randall Kessler: “Measure twice, cut once.”
Representing yourself in a divorce? Terrible idea. It’s like anything, it depends on the nature of the divorce, right? If you slip and fall and you bruise your arm, you could put a band aid on it yourself. But if you break the bone, you should go see a doctor. Same thing. If you’ve been married for one day and there are no assets, and you can do the paperwork yourself and figure out how to get it through the judge, probably fine. Even then, it’s probably worth a few hundred dollars just to run it by somebody.
The problem is that divorce is filled with landmines and quicksand and all sorts of problems that you may not recognize. Let’s say you and your wife agree that you’re going to have to pay child support and alimony, and you decide to pay alimony for four years. Well, in some states, alimony is modifiable, but you can waive the right to modify it. What happens if you end up losing your job in two years and you want to reduce the alimony?
If you didn’t have a lawyer remind you that maybe you should say in there that it’s modifiable, or some states say it’s only modifiable if it is the kind of alimony that ends in four years or when the other side dies, whichever one is sooner, there’s just lots of little nuances that you might miss and you might be stuck in a bad place for a long time. Maybe you have $100,000, and 50,000 is in retirement and 50,000 is in cash. You say, “I’ll keep the retirement. You keep the cash.”
Well, a good divorce lawyer would remind you that $50,000 in retirement is not the same as $50,000 in cash. Because if you needed that money now, you’d have to withdraw it and pay taxes and penalties. The current present value of that $50,000 in the retirement might only be the same as $30,000 in cash. There are hundreds of examples why you should not represent yourself. But if you’re going to do it yourself, at least get the ounce of prevention. Run it by a lawyer. Talk to somebody and say, “What mistakes have I made?”
You might say, “Okay, I’ll take the risk. That’s not a big risk,” or you might say, “Well, I’m glad I talked to you.” Better to do it before. The old saying is measure twice, cut once. If you’re a furrier or if you’re buying carpet, better to measure before you cut.
Barry Gold: “You do not know what you do not know.”
I’m laughing not because there’s anything. Someone maybe self-represented because they simply don’t have the resources to hire a lawyer. If they don’t have the resources to hire a lawyer, they might almost be okay if they didn’t have children and again, I am presuming that they have no money to hire a lawyer. It may not have very much of anything involved. Tennessee Supreme court has put into place through some very longstanding and, I think, very diligent programs that pro se litigates these form packets. These are available for free, and they have been approved by the Tennessee Supreme court. If someone simply doesn’t have any resources that beats the heck out of patrolling the internet and trying to put together something to do it. The biggest problem with the pro se litigant is, again, some of this is a little hacky, but it’s true.
You do not know what you do not know. They don’t know what they don’t know. And in addition, they don’t know what to look for. What just you’re clear of emotionally. They are at one of the most difficult times in their life. Psychologists, routinely rate divorce as the second most stressful experience, humans can go through behind only the death of a close loved one. And so, they are in a very emotional situation. They don’t what they don’t know. And they’re being asked to exercise what’s supposed to be, a left side brain, a logical brain function of trying to make good decisions. And they are living in the right side, the emotional side of their brain. It’s not just a matter of, they can’t see the forest for the trees. Literally their face is up against the bark, and they’re going to try to make decisions that will affect them in the near term, quite possibly long term, and possibly for the rest of their lives.
So, they really do need help to do that. I’ve urged someone if they don’t think they can afford a lawyer to retain someone, pay for the consult, get an hour’s worth of advice and then make a decision from there. But the idea of a pro se litigant in a divorce case, they generally don’t work out well. It was an old commercial way, way before your time. I think it was a Pennzoil commercial. It could be 40 years or longer ago, and there’s a photo of a mechanic or a video. The mechanic would show up at the end of commercial. You’d talk about someone who came in there and they used some subgrade of substandard motor oil. And now they’re having to pay some enormous fees because they killed their engine. Mechanic would look at the camera and he’d say, “Well, you can pay me now. Or you can pay me later.”
And the pay me now choice was the more economical, just get their Pennzoil. There was a lot analogous to this process by paying the divorce lawyer. Now they are very likely going to be saving themselves a lot of time, aggravation, and money down the road. It can be very hard, sometimes impossible, to fix the mistake that a pro se litigant will make. So, I would advise against it.
Scott Friedman: “You don’t have the perspective that is needed.”
Why is representing yourself in a divorce a bad idea? Because you don’t have the perspective that is needed to be effective. You’re emotional. You are naive about your own behavior. And I just think that people who represent themselves don’t do well. And so, you need to have perspective from a different source that isn’t the person that is in conflict with the person you woke up next to every morning, who you had your children with, whatever, that sort of thing. So, I think it’s foolish and you lose perspective.
Steven Peskind: “Always a train wreck.”
I have had many cases where I’ve represented a spouse of a lawyer who is representing themself and it’s always, always a train wreck for them. And it’s just, you need somebody to give you a reality check and you lose that when you’re so close to the fire, and it’s just a terrible, terrible idea.
Joe Booth: “You don’t have the ability to be objective.”
You don’t have the ability to be objective. It’s very difficult to be empathetic. It’s very difficult to separate where you are now to where you want to be and having any third party that is not going to antagonize that situation helps help separate that out. It is nearly impossible to be who you want to be in a situation that is very stressful, very disappointing, very traumatizing.
You’re not that person at that point. So, you can’t be that person and you have to figure out how to resource to get other people. That resourcing may not be that complex, liken it to calling tech support. And as you’re talking either before they get on the line or as you’re talking to them, you now have your solution. But that out boarding of what we’re thinking and feeling and working on and then reacquiring, it really is important. Otherwise, you’re going to with a diminishing return in what you’re trying to do. It’s always going to be less than more.
Melissa Avery: “It’s just very difficult to do that cost benefit analysis with all of the emotions that are inherent in the process of breaking up.”
Well, first of all, if you’re not a lawyer, you probably don’t understand the law. And well, you might agree to things that are different than what the law dictates and that’s fine. You should at least know what it is so that, if the thing that you’re agreeing to is reasonable, if it’s kind of within the range of what might happen if you had a judge decide, or whether you are outside of that range. And again, it’s okay if you decide to do something outside of that range, but you should just have that knowledge before you make that decision.
And then of course, lawyers are just able to analyze and help you analyze things without the emotional aspect that you really can’t get away from. If you are your own client, most decisions that you make during the divorce process, when it comes right down to it are cost benefit analysis. It’s just very difficult to do that cost benefit analysis with all of the emotions that are inherent in the process of breaking up a very personal relationship, and a good lawyer will help you do that and help you stay focused on that and also help you get help for the emotional aspects of it from the person that’s appropriate to give you that assistance.
Miles Mason, Sr.: “People misjudge some of the most basic, simple financial issues in a divorce.”
The reason why you shouldn’t represent yourself in a divorce, there’s so many different reasons. It’s difficult to list but let me start with number one: perspective. It’s doggone near impossible to have perspective about your own life, your marriage, your state, who’s at fault, parenting time. You need advice. You need somebody to bounce those ideas off. And mediators, while they say they can listen, they’re not going to be able to tell you what’s best for you. You, from a perspective of having seen that situation over and over again, because that’s part of what you pay for, with a family lawyer, second family lawyers, or professional negotiators. Almost all spouses overestimate their relative skill on negotiating.
The settlement of a divorce it’s rarely square one, square two, square three, square four. It’s rarely linear. It’s part art, part science. And there are tactics that people use to destabilize your emotional stability. And so, you’ve got to know how to deal with those. And as family lawyers, we are some of the most experienced professional negotiators on the planet. And that’s true. And then finally you don’t know what to do when the other side lies. And the most, one of the most. kind I’m in situations is when somebody says, “Don’t worry about my pension. I can’t divide it even if I wanted to.” Right? Well, that statement not only may not be true, but it may be incredibly destructive because there are many people who have estates under $2 million getting divorce where the pension itself is worth over a million dollars in future payout. And I’ve seen this time and time again where people misjudge some of the most basic, simple financial issues in a divorce because they rely on the wrong person giving them the wrong advice. And one of the things family lawyers should be able to do is spot that a mile away.
For more discussion, see Miles Mason, Sr.’s Filing for Divorce Without a Lawyer: Do I need a divorce lawyer if we agree on everything?
Thank you for contributing your experience and expertise to our “Top Family Lawyers Answer Divorce Questions” video series. You are the best. Cheers!
Randy Kessler
Atlanta, Georgia
Kessler & Solomiany, LLC
ABA Family Law Section, Past Chair
Melissa Avery
Indianapolis, Indiana
Broyles Kight & Ricafort, P.C., Of Counsel
ABA Family Law Section, Past Chair
Joseph W. Booth
Lenexa, Kansas
Law Offices of Joseph W. Booth
ABA Family Law Section, Co-Chair of Publications Board
Scott N. Friedman
Columbus, Ohio
Friedman & Mirman Co., L.P.A.
ABA Family Law Section, Past Chair
Stephen N. Peskind
St. Charles, Illinois
Peskind Law Firm, PC
ABA Family Law Section, Author
Barry L. Gold
Chattanooga, Tennessee
McWilliams, Gold & Larramore
TBA Family Law Section, Past Chair
Miles Mason, Sr.
Memphis, Tennessee
Miles Mason Family Law Group, PLC
ABA Family Law Section, Author
