Need A Divorce but Cannot Afford an Attorney?

(Laws and resources for divorce vary from state to state.  This post is not intended as legal advice, and the resources listed here are specific to residents of South Carolina.  However, some general principles may apply. )

THE TRUTH:   

IF YOU CAN’T AFFORD AN ATTORNEY, YOU MOST LIKELY CAN’T AFFORD A DIVORCE

While paying a professional to help with your divorce is one first step, there’s more to the cost of divorce than just paying a lawyer.  

GENERAL CONSIDERATIONS

A.  Fairness is Important!

First of all, be forewarned.  Divorce is not free or cheap.  What’s worse, pennies saved now may cost pounds later.   The terms of your divorce may determine the future course of the rest of your lives.  For instance, if you fail to negotiate a fair property settlement, that may impact your ability to retire some day.  If both parents fail to protect their children from the repercussions of divorce, the dynamics of  your family may be impacted not only for your generation, but for future generations.  It’s important to get it right.  When you are strapped for cash, however, this can be a real challenge.   In this article, I hope to give struggling folks some ideas that will help keep pennies in the family pocket, but help you aim toward a fair result.  

B. Be Realistic!

If you are struggling to pay for professional assistance with your divorce, the most important suggestion I can make is for you to think twice.  If you are struggling now trying to make ends meet, how will the two of you manage the added expense of two households?  Marriage counseling has brought many marriages back from the brink, and your children will thank you if you can restore health to your marriage.   Sometimes people say they’ve tried counseling and it failed.  If this is the case, consider changing counselors.  Not every counselor is right for every couple.   But let’s say you’ve given it a good try, and you know it’s not going to work.  Your best option for keeping costs down during divorce is to work things out with your spouse so that you have an uncontested divorce.   An uncontested divorce is when the two of you have agreed on everything, so that there is nothing left to “contest” in court.    What’s there to agree on?  There are three main things:  (1) property division, (2) support obligations, and (3) parenting.  Each of these involves complex issues.  Even if you cannot afford full fledged legal representation, consider seeking the advice of an attorney or finding some way to educate yourselves on each of these three areas of potential dispute.

C.  Do-It-Yourself Divorce Is Available, But Is Not Right For Everyone

If you can resolve all the issues for divorce by yourselves, you may be able to file papers yourself using the self-represented litigant forms published by the S.C. Supreme Court.  Those forms are HERE .   Be sure to look for and download the instructions as well as the forms. The self represented litigant forms are limited to cases where there are no contested issues.  The normal filing fee for divorce in South Carolina is $150.

Even for a simple divorce where there are no issues involving children or property division, the self-represented litigant forms are not easy to fill out.  If you need help in sorting through it, the S.C. Legal Services Corporation (Legal Aid), offers clinics in which they walk people through the process of filling out these forms.  The phone numbers for S.C. Legal Services Corporation are on my web site, HERE.  You may also be able to find an attorney who will review your documents and guide you as you do it yourself, for an hourly rate.  This is called “unbundled legal services.”

Although this blog post is about divorce, I would also like to point out that the S.C. Supreme Court has also published forms for self represented litigants seeking to INCREASE or REDUCE child support.  Instructions are HERE.  (The filing fee is $150, but a party may file the Motion to Proceed In Forma Pauperis (above).  Granting of the motion to waive fees is always in the discretion of the Court and must be supported by an affidavit of indigency.)

D. Mediation May Help Resolve Differences Without Breaking the Bank

Achieving an uncontested divorce may not be as easy as you would like.  When you got married, or even if you just lived together without getting married, your lives got twined together in many ways.  I vision this like two vines that grew together.  You may own property together, you may have debts together, you may have children together.  Nobody likes the idea of having their own “vine” hacked off at the root.  This is a very threatening thought.   But people if people think in terms of dis-entangling the vines, this image may help them have an easier time working together through issues related to their separation.

To have an uncontested divorce, you must agree on how to dis-entangle all this — every aspect of your financial lives, as well as how to go forward in parenting your children.  If you and your spouse are unable to come to voluntary agreement on all the terms of your divorce (who gets what property, how to share parenting, etc.), then your divorce is not “uncontested” and you should not use these uncontested forms.   In ordinary cases, however, if you are unable to agree but if you both are committed to being fair to one another, you may be able to save money by using a neutral mediator to help you reach agreement.  After you reach agreement, then your divorce would be uncontested and you can use the self represented litigant forms.

A divorce mediator is someone who knows what issues need to be resolved and who helps the two parties reach voluntary agreement on those issues.  After all issues have been agreed upon, the divorcing couple enters into a written separation agreement.  Attorneys as well as other experts may be used or consulted during the mediation process.  The difference is that the attorneys are used as consultants rather than as gladiators to “fight” for someone’s rights, as the process in a mediated divorce is collaborative rather than adversarial.

If one or the other of you is not committed to fairness, then mediation cannot force that person to be fair.  In that event, the parties will need the judicial process of the court to enforce principles of fairness.  One of the most important things to ensure fairness is to have full financial disclosure.  If one of the parties fails to disclose important assets or debts, then it would be impossible for the other party to know if a proposed agreement is fair.   Thus, in order to achieve a fair divorce in mediation, parties must agree to principles of fairness and to full financial disclosure.

Mediation can be used as much or as little as the parties find useful.  Suppose, for example, that the parties have resolved all their property issues but can’t agree on custody of the children.  They could hire a mediator to work with them on that one issue.  With some help as issues arise, a divorce may end up being uncontested even if the parties originally started out with serious disagreement.

Although cost effective, mediation is not free.  Expect to pay a mediator according to their skill and experience.   To be qualified to mediate divorce cases, a mediator must have knowledge about divorce legal issues, and must also have significant conflict resolution, negotiation, and client coaching to their toolbox of skills.  Thus, expect to pay a professional mediator as much as or more than the same amount per hour that would be paid to an attorney.   The difference is that instead of each party having their own attorney, the two parties can share the cost of one mediator.  The good news is that if both parties are committed to fairness, willing to engage in full financial disclosure, and can talk and negotiate without getting unduly antagonistic, chances are good that their divorce can be mediated and that mediation will help them resolve their conflict for a fraction the cost of litigation.

Another way mediation reduces cost is that it reduces the amount of conflict.  Even if parties start out in serious disagreement, mediation may help them get through the process without engaging in the type of courtroom warfare that escalates conflict and causes costs to skyrocket.   Mediators use their skill to help parties reach agreements.   In a litigated divorce, in contrast, the parties are asking someone else to impose a judgment on them.  The litigation process is designed not to facilitate agreement, but to give the judge enough information to decide the case.  Thus, every time one party takes one position, the other party is forced to respond in some countermeasure to protect themselves in the judicial tribunal.  This tit-for-tat can drive up costs.

Another factor that can drive up costs is when parties try to act out their emotional hurts or anger through the adversarial divorce process.    It is possible to negotiate even a relatively complex divorce settlement for a relatively low cost, but much depends on the parties.  The process of separating from a spouse involves many emotions.  Anger, bitterness, and the desire for revenge can cloud the judgment of the most rational of people.  It is not rational to spend $10,000 to litigate over a who gets the Santa Claus collection, but anger and hurt can interfere with the rational decision to cut one’s losses and move on.   If parties are trying to keep costs low in your divorce, it is best to keep emotional factors out of it and remember that the legal aspects of divorce are best limited to money and children.

It is not always easy to keep the emotional factors out, however.  It may be helpful to remember that while you do not control the actions of your soon-to-be-ex spouse, you do control yourself and your own responses.  If each of you responds angrily to the other, the conflict will escalate.  Someone must break the cycle.  Could you break that cycle by taking the high road and not retaliating?  Particularly when children are concerned, the resource Up To Parents may provide resources that can help divorcing couples reach agreement on how to work together as parents.   Additionally, if you find that emotions seem to be driving your positions, it would be well worth it to spend a few sessions with a divorce counselor. While this may cost a few hundred dollars, it may buy both peace of mind and also save a lot of heartache and money in the long run. Indeed, a divorce process that is fueled by anger and bitterness is the most expensive and unsatisfying divorce there is.

E. After Mediation, Legal Steps Will Still Be Required, But The Court Action is Simpler

A mediator cannot act as an attorney to go to court for you after you have reached your marital settlement.  However, the resulting legal action will be uncontested, resulting in much lower legal costs.  Or, if it is truly uncontested, you may feel more comfortable with the self-represented litigant forms.  Just remember, because penny wise can be pound foolish, your goal should not be “cheap” but rather “cost effective.”   Moreover, if you truly cannot afford any legal costs, then you should re-think whether you can afford the divorce at all.

In summary:

• The best way to reduce costs of divorce is to agree on as much as possible yourselves.
•  If parties can agree on enough to have an uncontested divorce, this is the least expensive route.
• If a person cannot afford an attorney for even an uncontested divorce, they may be able to attend a workshop offered by S.C. Legal Services to help them learn how to process the S.C. Supreme Court’s Self Represented Litigant’s divorce forms.
•  If parties are unable to agree, a consultation with a mediator may help.   The good news is that parties generally share the cost of the mediator; mediation reduces conflict which results in lower cost; and the process is streamlined.  Many parties find that mediation is quite affordable especially when compared with litigation.
• If parties are not able to agree to mediate, if they cannot put aside anger issues, or if one is not committed to fairness, then divorce litigation is likely inevitable.
• If divorce litigation appears inevitable, the divorcing person needs to begin thinking about how to afford a divorce attorney, whether they feel they can afford it or not.  Some options for this are second jobs, mortgaging property, taking out loans, and getting financial help from relatives.

If mediation interests you, consider requesting a consultation with Just Mediation, LLC, fill out the form below or call 803-414-0185.  Mediation services through Just Mediation are available not just locally, but also by way of computer assisted distance technology.