DIVORCE AND CUSTODY ISSUES – DO YOU REALLY NEED A LAWYER?

DIVORCE AND CUSTODY ISSUES – DO YOU REALLY NEED A LAWYER?

Very often, a potential client will call and ask if he or she really needs to hire an attorney, especially if his or her spouse has already hired one.  This question takes a number of forms, depicted below.

Uncontested Divorce

In an uncontested divorce, you and your spouse are on relatively friendly terms and you’ve reach an agreement on most issues.  In this scenario, your spouse hires an attorney to formalize the terms.  Most likely, your spouse met with his or her attorney before hiring the attorney and discussed the terms of the settlement the two of you previously reached.  During their meeting(s), your spouse’s attorney has provided your spouse with legal advice regarding the settlement you and your spouse reached, both the positive and negative aspects as applicable –  advice you’re not privy to which, in turn, may negatively impact you in the future. In addition, your spouse’s attorney will ultimately draft the Judgment of Divorce, which will contain the settlement terms you’ve reached but it may also contain terms that, unbeknownst to you, may alter the agreement you believe you’ve reached.   

Example:
You’ve met or had a discussion with your spouse’s attorney, and he/she has answered your questions (which is permitted, as you are not receiving advice from this attorney, you are simply discussing the terms you’ve already agreed upon with your spouse directly).  You confirm with your spouse’s attorney the parenting time schedule you and your spouse have agreed upon, along with each of you having joint custody.  You confirm with your spouse’s attorney that you intend to eventually move back to your home town, approximately 48 miles from your current address.  In response, the attorney representing your spouse cites Michigan law commonly known as “The 100 Mile Rule” which states that a parent of a child whose custody is governed by the court shall not change the child’s legal residence to a location that is more than 100 miles from the child’s address when the divorce action was initiated.  Perfect you think – you’re free to move when you’re ready . . . except, your spouse’s attorney does not and cannot point out that joint legal custody provision you’ve also agreed upon prevents either of you from unilaterally changing your child’s school.  How are you going to move 48 miles away without changing your child’s school?

This is one of many scenarios that could occur if your spouse has the benefit of an attorney, but then tells you that there is no need for you to hire your own attorney.  Nearly every parent will say that nothing is more important that their children.  Be sure to protect yourself and more importantly, protect your children.   

Private Mediation

Couples ending their relationship may choose private mediation.  Private mediation is non-court-ordered mediation where the parties mutually agree upon a third-party neutral mediator. Private mediation allows you to control the outcome of your divorce or custody issue.  It can be a very effective method that allows a couple to navigate a painful chapter of their lives privately and without the trauma of traditional courtroom litigation. While private mediation can lead to a fair settlement of custody, parenting time and support, again there could be unintended consequences when parties mediate without the benefit of legal counsel on their behalf.

Example:
You and your partner have decided to end your romantic relationship.  You’ve never married, but you have one child.  Because you are not married and there is no property to be divided legally, you’ve decided to attend private mediation, without either of you hiring your own attorney.  You’ve both attended mediation, and after two sessions, you reach a mutual agreement regarding custody and parenting time.  You continue the process on your own, resulting in a final Consent Judgment of Custody and Parenting Time being entered by the Court. One year later, your circumstances have changed and you are available to spend more time with your child, rather than having her in daycare.  However, the other parent will not agree.  What you did not realize during private mediation when you agreed to the parenting time schedule which was formalized in court is that absent the other parent’s consent, you cannot modify the existing parenting time schedule unless there is proper cause or a change in circumstances. And, the change in circumstances must be something more than normal life changes. Without the benefit of legal advice protecting your interests, you could be stuck with a parenting time schedule for years, costing you more time and money in court down the road with no guarantee that it can be changed.

Collaborative Divorce

Another option available to couples looking to avoid the emotional and public toll courtroom litigation can take is by choosing a Collaborative Divorce. A Collaborative Divorce is not necessarily an amicable divorce, instead it is an option for couples to completely settle their entire divorce before the Complaint for Divorce is filed. Each party chooses a collaboratively-trained attorney and then everyone signs a Collaborative Agreement which lays out the terms of the process.  A significant provision in the Agreement states that neither side will seek court intervention, and of one party does decide to litigate an issue, then the collaborative process ends and both attorneys must withdraw from the case as it proceeds to court.  This is a motivating factor for each side to fully commit to the collaborative process.

In the collaborative process, attorneys assist the parties in settling conflicts through a series of 4-way meetings during which cooperative techniques are applied to address and settle issues.  If needed, a neutral financial planner and/or mental health professional may join the process to assist in facilitating an agreement, and these professionals are also collaboratively trained. The outcome is a complete, final agreement that both parties are satisfied with because the parties themselves, with the assistance of their collaboratively trained professionals, reached the right outcome for their particular situation, without fighting in court.  Simply put, it allows you and your ex to sit near each other at your children’s academic and extra-curricular events and your children do not have to look down at each end of the soccer field to see mom and dad after they’ve just scored a goal.

Contact me at 248-647-7900 if you have questions about your particular situation.