Written By Allison R. McAlpine
Many individuals choose to represent themselves in a separation or divorce. Some examples are as follows:
- A party representing himself/herself in Family Court;
- Both parties unrepresented and draft a Separation Agreement amongst themselves;
- One party represented by a lawyer and the other party not obtaining Independent Legal Advice before signing a Separation Agreement.
There are dangers in all of these options as follows:
- Self-Representation in Court – you are more likely to obtain a positive resolution if you hire a lawyer to represent you in Court or at least to coach you through the process (discussed below under Limited Scope Retainers). If one party is represented by a lawyer and the other is not, then the self-represented party is at a significant disadvantage in the case. From not knowing the law, not knowing the rules of Family Court, to not knowing how to properly fill out court paperwork the self-represented party is taking a risk in not hiring a lawyer to guide him/her through the process.
- Self-Preparation of Separation Agreements – There are three significant risks of signing a home-made separation agreement:
- The Agreement may be found unenforceable for a variety of reasons, such as missing essential terms, not having independent legal advice, not having proper financial disclosure exchanged, or having unclear/conflicting terms.
- A party may be agreeing to something that he or she does not intend. If the parties use a “precedent” separation agreement either from the internet or from someone else that hired a lawyer to do their Agreement, the parties may include clauses from these precedents that do not apply to their specific case or that the parties do not understand the consequences of.
- A party may not have included a term/terms that should be included such as proper releases, review clauses, termination clauses, etc.
- Not obtaining Independent Legal Advice – if one party does not obtain independent legal advice (ILA), that party may not thoroughly understand what he or she is signing or the consequences of it. For the party that has a lawyer, the risk if the other party does not have ILA is that the Separation Agreement could be set aside for that very reason as the non-represented party could allege that he or she did not understand what they were signing or that they did not have the capacity to sign.
Family Law is a complex area of law that is changing every day and has significant consequences for the daily life of the person involved (i.e., impacts their daily finances, how much time they see with their children, etc.). All of the risks mentioned above can result in increased legal costs for the individual to hire a lawyer to try to fix what was done the first time when the individual was self-represented. By hiring a lawyer to represent you in your separation or divorce you can save thousands of dollars in future legal costs.
Not everyone can afford a lawyer to fully represent them. An alternative to hiring a lawyer for full representation is called a Limited Scope Retainer. A Limited Scope Retainer is a client hiring a lawyer for a limited purpose of their case. Examples include:
- Litigation Coach – the individual is self-represented, but hires a lawyer to coach them in the background, give an opinion on a specific legal issue, represent them only on a specific legal issue, represent them only for a specific step in the process, help the individual draft their court paperwork or provide ILA on a proposed resolution.
- Provide ILA and draft a Separation Agreement in which the parties have agreed upon terms amongst themselves – the parties have saved money on the negotiation part of their case, but hire lawyers to ensure that the Agreement is legally binding, clear and sets out what they agreed to. Further, the lawyers will ensure that their clients understand what they are signing, have capacity to sign, and understand the consequences of the Agreement.
At Chapman McAlpine Law, we offer both full representation and limited scope representation. Whatever process you chose, we strive to offer family law services in an approachable, friendly and compassionate environment, while providing reasonable costs and exceptional service. Contact us today to book a one hour no-obligation consultation: 705-302-3696 or firstname.lastname@example.org.