Missouri Divorce and Family Law Blog : Kansas City Divorce Lawyer & Attorney : Wortman Law Firm

How to get divorced without using a lawyer -- and when you might really need one.

You probably know of people who suffered the torments of hell going through divorce, and you also probably know people who pulled it off without much fuss. Why are some divorces sensible and others catastrophic?

The answer can depend, to a surprising extent, on just one factor: how much you rely on lawyers and courts to resolve troublesome issues. The less you use the court, the less cost and heartache, and, in many cases, the better quality of the final result. But how do you avoid courts and lawyers?

Make Decisions by Yourselves

In theory, at least, it's simple: You do best if you work out thorny issues yourselves, with help from a neutral third person, such as a mediator, if you need it. You don't let lawyers haggle over such vital matters as how your children will be raised, what happens to the family home, and how your property will be divided. If you can work these issues out yourselves -- and many, if not most, couples can -- you will save yourselves time, money, and anguish. More important, you will spare your children the ugly spectacle of extended parental fights, helping them come through the divorce as undamaged as possible.

If you are able to solve the big questions of children, money, and property, you need to ask the court, in writing, to grant a divorce. In many states, you don't even have to appear in court. Many courts now make it relatively easy for people to handle the whole process without a lawyer.

But first, you've got to tackle those big questions. Can you and your spouse -- someone you may not feel much like cooperating with at the moment -- do it on your own? A surprising number of divorcing couples are eventually able to come to terms without outside assistance.

If You Fear Violence

If you fear that your spouse might harm you or your children or abscond with your property, take action immediately. Move to a safe place, and, if necessary, get a temporary restraining order to keep the spouse away.

Some people may advise you to close joint bank and credit card accounts, but this could be held against you during future court proceedings. Since joint bank and credit accounts are usually viewed as joint property, your future ex may accuse you of fraud or theft and a judge may agree, despite the fact that violence is raised as an issue.

Your best bet is to take the amount of money you realistically need (you do have this right, but try not to take more than half of what's there unless you absolutely have to), plus some extra for emergencies, and immediately file an action in court for support.

How Lawyers Fan the Flames

To an emotionally distraught or angry person, turning all the details and hassle of a divorce over to a lawyer may seem like a perfect solution. Unfortunately, it can turn out to be a deal with the devil. Most observers -- and people who have been through an acrimonious divorce -- agree that lawyers frequently make things worse, not better.

This happens because all lawyers operate under a prime directive: the zealous pursuit of their clients' interests. One lawyer can't fully represent both divorcing spouses, because each spouse's best interests are different. So, when one spouse brings a lawyer into a divorce, the other usually does likewise. There may even be a third lawyer to represent the children if there is a custody dispute. And then it can get ugly. When two or more lawyers are fighting for their clients' interests, the battle can go on and on, intensifying in passion, until the clients run out of money and limp to the settlement table.

But, if there are children, the fight depletes not only your pocketbook but also your children's sense of security and self-esteem. And, once the legal fight is over, trying to establish normal ongoing relationships between both parents and the children through a flexible custody and visitation arrangement can be very difficult.

When a Couple Can Use One Lawyer

There's an exception to the rule that no one lawyer may work for both divorcing spouses (who are assumed to have different, if not conflicting, interests). This is allowed when:

• the clients have agreed on major issues
• the clients are confident they can work out the minor issues
• the clients understand that the lawyer cannot fully represent both under the circumstances
• the clients have agreed to this in writing, and
• the clients just want the lawyer to do the paperwork.

However, if a disagreement arises between the couple, the lawyer ethically has to transfer at least one client to another lawyer. The lawyer may have to transfer both clients to other lawyers if the lawyer has learned some things about the couple that make it unfair for him to represent one of them.

How to Keep Lawyers Civil

If you and your spouses do hire lawyers, you have the power to stop your lawyer from engaging in lengthy, expensive arguments with your spouse's attorney. Simply tell him or her to stop and explain that a combative approach does not suit your or your children's needs. Most lawyers would rather have a satisfied client than feed their ego by fighting the other side's attorney. Better still, try to hire a lawyer who'll work to minimize conflict with the other side from the start.

Some family lawyers are also trying a new method called "collaborative law," in which the clients and lawyers agree that they will not go to court but will share information voluntarily and work cooperatively toward a settlement. Collaborative lawyers will take cases only where the other spouse has also hired a collaborative lawyer, and the lawyers sign an agreement that, if the case can't be settled, the parties have to hire another lawyer to do the litigation. This removes the lawyers' financial incentive to go to court and encourages everyone to settle earlier.

When to Hire a Lawyer

It makes a lot of sense to hire a lawyer if there is a real problem with abuse -- spousal, child, sexual, or substance. In that situation, a lawyer may help you get the arrangement you need to protect yourself and the children, if there are any.

It can also make sense to hire a lawyer if your spouse is acting dishonestly or vindictively and you just can't cope with it. In that case, you may need someone to protect your interests.

It's also prudent to hire a lawyer if your spouse has an attorney. This is especially true if you have children or are facing complicated financial issues. It could be difficult and emotionally intimidating to go head to head with a seasoned pro.

If you can't afford a lawyer, consider calling your local legal aid office. If you qualify financially, a lawyer will at a minimum discuss the legal aspects of your case with you and may continue to answer questions on an ongoing basis during your proceedings. If the legal aid attorney's caseload permits, he or she may take your case, usually at little or no cost. Also, ask if the legal aid office has a pro bono program. The legal aid office may have a list of private attorneys that are willing to take on cases recommended by legal aid. These services are also at little or no cost.

If you don't qualify for legal services or pro bono help, you'll have to shop around for someone to represent you.

How Mediation Can Help

Mediators help you and your spouse get over the emotional barriers to negotiation and help you fashion a sensible divorce agreement that meets the both of your needs. Unlike lawyers, mediators work with both spouses at the same time. They don't represent the individual spouses' interests, the way a lawyer does. Instead, mediators facilitate an ongoing negotiation between the spouses that in most cases results in an agreement satisfactory to both sides.

Copyright © 2006 Nolo

A divorce obtained in a different state or country from the place where one spouse resides at the time of the divorce. As a general rule, foreign divorces are recognized as valid if the spouse requesting the divorce became a resident of the state or country granting the divorce, and if both parties consented to the jurisdiction of the foreign court. A foreign divorce obtained by one person without the consent of the other is normally not valid, unless the nonconsenting spouse later acts as if the foreign divorce were valid, for example, by remarrying.

Copyright © 2005 Nolo

A situation in which the partners in a married couple live apart. Spouses are said to be living apart if they no longer reside in the same dwelling, even though they may continue their relationship. A legal separation results when the parties separate and a court rules on the division of property, such as alimony or child support -- but does not grant a divorce.

Copyright © 2005 Nolo

Any divorce in which the spouse who wants to split up does not have to accuse the other of wrongdoing, but can simply state that the couple no longer gets along. Until no-fault divorce arrived in the 1970s, the only way a person could get a divorce was to prove that the other spouse was at fault for the marriage not working. No-fault divorces are usually granted for reasons such as incompatibility, irreconcilable differences, or irretrievable or irremediable breakdown of the marriage.

Copyright © 2005 Nolo

A conflict in personalities that makes married life together impossible. In a number of states, incompatibility is the accepted reason for a no-fault divorce.

Copyright © 2005 Nolo

Like a divorce, an annulment is a court procedure that dissolves a marriage. But, unlike a divorce, an annulment treats the marriage as though it never happened. For some people, divorce carries a stigma, and they would rather their marriage be annulled. Others prefer an annulment because it may be easier to remarry in their church if they go through an annulment rather than a divorce.

Grounds for annulment vary slightly from state to state. Generally, an annulment requires that at least one of the following reasons exists:

•Misrepresentation or fraud -- for example, a spouse lied about the capacity to have children, falsely stated that she had reached the age of consent, or failed to say that she was still married to someone else.

•Concealment -- for example, concealing an addiction to alcohol or drugs, conviction of a felony, children from a prior relationship, a sexually transmitted disease, or impotency.

•Refusal or inability to consummate the marriage -- that is, refusal or inability of a spouse to have sexual intercourse with the other spouse.

•Misunderstanding -- for example, one person wanted children and the other did not.

These are the grounds for civil annulments. Within the Roman Catholic Church, a couple may obtain a religious annulment after obtaining a civil divorce, so that one or both people may remarry, within the church or anywhere else, and have the second union recognized by the church.

Most annulments take place after a marriage of a very short duration -- a few weeks or months -- so there are usually no assets or debts to divide, or children for whom custody, visitation, and child support are a concern. When a long-term marriage is annulled, however, most states have provisions for dividing property and debts, as well as determining custody, visitation, child support, and alimony. Children of an annulled marriage are not considered illegitimate.

Copyright © 2005 Nolo

A divorce automatically granted by a court when the spouse who is served with a summons and complaint for divorce fails to file a formal response with the court. Many divorces proceed this way when the spouses have worked everything out and there's no reason for both to go to court -- and pay the court costs.

Copyright © 2005 Nolo

I took my husband's name when I married, but now we're getting divorced and I'd like to return to my former name. How do I do that?

In most states, you can request that the judge handling your divorce make a formal order restoring your former or birth name. If your divorce decree contains such an order, that's all the paperwork you'll need. You'll want to get certified copies of the order as proof of the name change -- check with the court clerk for details. Once you have this official documentation, you can use it to have your name changed on your identification and personal records.

If your divorce decree doesn't contain an order restoring your former name, check to see if it can be modified to include language restoring your name. In some states, this is possible even after the divorce is final.

Even if your divorce papers don't show your name change, you may still be able to resume your former name without much fuss, especially if you still have some proof of that name, such as a birth certificate or old passport. In most states, you can simply begin using your former name consistently, and request that it be changed on all your personal records.

If you're returning to a name you had before marriage, you're far less likely to be hassled about the change than if you adopt a completely new name, but you may still face some bureaucratic barriers in returning to a previous name. This is especially likely if you are a recent immigrant or do not have reliable documentation of your former name.

Copyright 2005 Nolo