One question family law attorneys hear often is: “Do you need a lawyer to get a divorce?” (Sometimes the question is phrased with additional emphasis: “Do you really need a lawyer to get a divorce?”) The answer depends, in part, on what “need” means in context. No states require spouses to retain legal representation before filing for divorce, but for practical as well as legal reasons in many cases a divorce may proceed more smoothly with the assistance of an attorney who handles these matters on a regular basis. To decide whether working with an attorney in your divorce is right for you, call 888-748-KING and schedule a consultation with a member of our team in North Carolina or South Carolina. We proudly serve Winston-Salem, Rock Hill, Mecklenburg County, Haywood County, and Watauga County. An attorney at our location nearest to you can listen to your situation, outline the approach our firm would normally take in a similar case, and provide you with information you can use in choosing your next steps.
When Can You File for Divorce Without a Lawyer?
While legal representation by a licensed professional is not a filing requirement for divorce anywhere in the United States, there are a number of reasons why individuals approaching the divorce process often prefer to do so with the advice and support of an attorney in their area. Most of these reasons can apply to some extent in any divorce, but generally speaking they tend to loom larger as the relative complexity of the divorce proceedings increases. For this reason, spouses are more likely to feel themselves equal to the task of navigating the legal aspects of a divorce when:
- The divorce is uncontested
- Neither spouse is alleging fault
- The couple’s assets are limited in scope and not significantly encumbered
- There are no children involved
Every divorce is unique, but as a general rule, the more the conditions listed above apply, the more manageable the technicalities are likely to be for an individual trying to handle the divorce process without support. Conversely, that same process tends to become more overwhelming in proportion to the complications introduced for each of these variables.
Contested vs. Uncontested Divorce: When To Consider a Lawyer
An uncontested divorce is one in which the court does not need to decide any questions before issuing its final order granting the divorce because the spouses are able to reach an independent agreement and submit it for the court’s approval. In North Carolina an uncontested divorce is often called a “simple” divorce, because the petitioner is not requesting the court to order anything other than the divorce itself (such as the division of property, or payments of spousal support), according to the North Carolina Judicial Branch.
While court approval is never guaranteed, in most cases the District Courts that oversee divorces in North Carolina, as well as the judges in the Family courts responsible for handling divorce cases in South Carolina, lean toward approving the arrangements that have the consent of both of the parties involved, so long as the submitted agreement addresses all of the required issues and is not obviously inequitable. Whenever a couple is unable to come to an agreement on any issue that must be legally decided before their marriage can be “dissolved,” the divorce is considered “contested” and will have to proceed through the court system. Generally speaking, uncontested divorces involve fewer steps and are less expensive than contested ones.
Questions an Uncontested Divorce or Simple Divorce Settlement Must Resolve
The issues any particular divorce settlement must address will depend on the factors present in the case, but some common requirements include:
- Division of marital property, including both personal items (a broad category that typically includes items such as clothes, computer equipment, toiletries, and even personal vehicles) and any real estate (such as the family home)
- Arrangements for the assumption of marital debt (often including responsibility for credit card payments, as well as any outstanding home or auto loans)
- Child custody plans, with a clear schedule for residential custody/visitation times, specifications regarding legal decision-making, and a rubric for how any co-parenting conflicts will be resolved
- Any arrangements regarding alimony or spousal maintenance, including amounts, frequency, and duration of the payments
Not all of these factors will be present in every case, but a divorce settlement must address each factor that does apply in their case, and the terms set out must be sufficiently detailed to satisfy the court.
Working With an Attorney To Draft a Divorce Settlement
One point to keep in mind is that many spouses, even in uncontested divorces, choose to hire a family law attorney to draft and review the settlement agreement outlining the terms the parties have verbally agreed to in order to ensure that the finished document will be legally valid and enforceable and accurately reflect their intentions. A settlement agreement whose wording is overly broad or restrictive can sometimes lead to unintended consequences over time, so a major function of divorce lawyers is often to mitigate the potential for long-term complications by preparing a tightly written settlement agreement.
Fault vs. No-Fault Divorce
“No-fault divorce,” in which neither spouse has to prove a legally codified wrongdoing by the other in order to obtain a dissolution of the marriage, is now available in some form throughout the United States. However, some jurisdictions – including both North Carolina and South Carolina – impose certain impediments that are designed to discourage divorce by making it difficult to achieve. Often these impediments come in the form of mandatory separation periods for no-fault divorces: That is, neither spouse is permitted to file for divorce until the former partners have been living in separate households for a minimum period specified by state law. Both North Carolina and South Carolina require at least a one-year separation period prior to either party filing for a no-fault divorce in most circumstances; South Carolina also allows for a shorter timeline to divorce if certain fault-based grounds are demonstrated.
A divorce attorney with King Law Offices may be able to help you evaluate the legal options available based on your circumstances and location; often this professional evaluation can be one of a divorce lawyer’s most important services. For those considering a self-service approach to divorce, however, it may be useful to bear in mind that, in broad terms, residents of both North Carolina and South Carolina are in most cases likely to find divorce easier to navigate on their own when no fault is alleged than when either party is asking a court to grant the divorce on the grounds of their partner’s fault. Notably, it is not usually possible to claim your own fault as the legal grounds for a divorce.
Division of Marital Property
There are two main ways in which the division of marital property can affect the practical answer to “Do you need a lawyer to get a divorce?” The first way is in the degree of agreement between the spouses: If they share a consensus on how their currently shared debts and assets should be divided between them as they part ways, then organizing the distribution of marital property themselves may be substantially easier than requesting a court to determine an equitable arrangement according to the factors set out in N.C.G.S. § 50-20 (North Carolina) or S.C. Code Ann. § 20-3-610 (South Carolina).
The second way that the division of marital property may impact the importance of professional legal representation in a divorce case is the complexity of a couple’s pre-divorce financial arrangements: Limited assets owned outright tend to be simpler to divide than expansive portfolios and partial interests (such as shares in a business). Spouses with complex assets may wish to work with their own divorce attorneys to develop clear plans for the orderly disentanglement of their shared finances – even in cases where the parties agree in principle on what the eventual outcome should be.
Child Custody and Support
Couples who have children together often face a more complicated divorce process than their child-free peers, simply because there will be more issues their divorce must decide. North Carolina is exceptional in not requiring divorcing parents to specify custody arrangements or to obtain a custody order; however, as the state’s Judicial Branch explains, parents who separate or divorce may choose to file a complaint requesting such an order. S.C. Code § 63-15-220 mandates required elements of parenting plans, to be submitted at hearings in family law cases whenever child custody is at stake.
Child support obligations are typically ordered based on the outcome of a statewide child-support calculator, provided by Child Support Services in North Carolina or the Department of Social Services in South Carolina. In some situations, parents can include terms in their divorce settlement specifying which parent will assume the responsibility for various categories of expenses (e.g., extracurricular activities or school supplies). A common reason for working with an attorney is to gain the benefit of professional expertise in determining how and whether to ask the court to account for these arrangements in the final child support order.
When Do You Need a Lawyer To Get A Divorce?
As a legal requirement, you are never obligated to hire a lawyer in order to file for divorce. For a variety of reasons, however, you may prefer working with a licensed attorney to navigating the divorce process on your own. Our legal team works in both North Carolina and South Carolina and we proudly Forsyth County, York County, Mecklenburg County, Haywood County, and Watauga County. As with most other processes for which individuals often hire professionals but sometimes decide to undertake a project themselves – like home repairs, automotive maintenance, or filing taxes – the relative stress and difficulty level of pro se representation (acting on your own behalf) in a divorce is likely to depend to some extent on the number of complicating factors present in your particular divorce case and the degree of cooperation you enjoy with your former partner. An initial consultation with a divorce lawyer in your state may help you to decide whether working with professional representation makes sense in your situation. Call 888-748-KING today to set up a time.