A judge’s role may be different depending on whether you are involved in a civil case (e.g., divorce, personal injury, debt collection, etc.) or a criminal case. In a criminal case the judge must ensure your constitutional rights are preserved. You are entitled to a jury trial and the judge ensures the jury is correctly informed and instructed and certain legal parameters are met. You have the right to a lawyer in a criminal trial and a public defender may be appointed to defend you at your request. If you choose to proceed without the service of an attorney, the judge will carefully consider your decision and ensure you have also done the same.
In a divorce case, it is a bit different. You are not entitled to the constitutional protections afforded a defendant in a criminal case. You have the right to a fair trial (not speedy) in which the judge, depending on whether you request a jury trial, may be rendering a final decision. You may or may not engage the services of an attorney for your divorce. You are not entitled to counsel in a divorce. If you decide to represent yourself, the judge will not carefully explore the issue with you – in fact, if the judge thinks you are making a huge mistake, you will seldom be told. The role of a divorce judge is to ensure your case moves through the court at an acceptable pace. Most good divorce judges will also strongly encourage you to settle (or resolve) your own case through mediation or negotiation. Most, but not all, civil cases are resolved by the parties and (if they have them) their attorneys. You are responsible to protect your own rights; which means you are required to have knowledge of the divorce laws and rules which govern your personal circumstances. For example, if you are divorcing your wife of 4 years and together you agree that you will pay alimony for the next 12 years, the judge will rarely question your negotiated agreement. If you had researched the divorce laws and attendant rules, you would have known that most marriages lasting less than 10 years do not have alimony ordered AND when alimony is ordered is it most likely to be ordered to last only as long as the marriage lasted. But the judge is not responsible to tell you this and will most likely sign your divorce decree ordering the payment of alimony for 12 years as per your agreement. It is imperative you learn what the divorce laws say and work to protect your own interests while meeting your legal responsibilities. A divorce lawyer may be able to help you accomplish this (the good news). Or you may be able to accomplish this goal on your own; saving you money. However, in some cases, you will fare better if you have an attorney. How do you know if you can handle your divorce on your own – knowing you will not receive appreciable feedback from the judge on how you are doing?
The answer is not simple. Primary factors to consider are:
- Has the Other Party Hired a Divorce Attorney? If the other party has an attorney you should think carefully about whether you need to hire one. The presence of a lawyer may give the other party a bit strategic advantage if you are pro se (i.e, representing yourself).
- Are the Issues of the Divorce Case Simple or Complex? If the issues are complex, you may do well to hire an attorney to help you find a way to effectively present the issues to the court.
- Can You Adequately Understand the Rules and Laws Governing Your Divorce? Some laws are very ambiguous. Sometimes the judges are forced to use an ambiguously worded law or Divorce Decree to frame their decisions by using the parties’ arguments to contextualize their decision For example, your divorce decree might state “Father shall have access to children for 4 hours one evening per week. “ If you cannot agree on the night, or if the father is saying he wants from 2-4 p.m. and then from 8-10 p.m. every Wednesday night and you don’t agree that this is a good plan for your children – you may need an attorney. Other times the law or Divorce Decree wording is very clear. If the divorce decree states you are required to pay $400 each month in Child Support, there is no ambiguity.
- What is the Relationship Between You and the Other Party? If your divorce has left you temporarily at odds with each other but you are generally on good terms, you might want to consider trying to work together to resolve the issues of your divorce using mediation. Divorcing parents may largely agree on how their divorce should proceed and how often the kids should be seeing both parents. They will not likely need to hire attorneys. If you are in a high conflict relationship, have a history of coercion or domestic violence in your relationship, or have a historically poor relationship a divorce lawyer is most often a very good idea. A good divorce attorney can provide help as a sponsor who will work to move you toward an equitable outcome, keep your ex-spouse-to-be from hurting you in the future, or help you resolve the issues of your divorce despite your bad relationship.
- Will it Be necessary for You and Your Ex-Spouse-To-Be to Maintain an Ongoing Relationship Once Your Divorce is Final? If you generally agree on the terms of your divorce and you do not have dependent children together, you most likely will not need to hire an attorney. If you generally agree on the terms of your divorce and you have dependent children together, you may want to hire a divorce lawyer or at least have one review the final draft of your divorce papers. Divorce lawyers address only the legal aspects of your divorce. However, you are also undergoing an emotional divorce. An attorney cannot help you with the emotional terms of your divorce.
If you decide you don’t need a divorce lawyer, you may want to use a mediator to help you resolve any issues of your divorce. Your lawyer may also recommend you use mediation to come to agreement on various issues. And regardless of your decision, if you later decide you made the wrong one – you can change it at any time. But remember, the judge does not monitor your attorney…it is your responsibility to ensure the integrity and honesty of your divorce lawyer.
Article by Dr. Sherry Thompson