Here’s a situation I wouldn’t wish on anybody. You’re a stay at home mom or dad with a spouse who makes a fantastic living. You don’t actually have any money of your own – it’s all in joint accounts, under your spouse’s control. One day, your spouse announces that he or she has had enough of you and the kids too, so here are the divorce papers. Your spouse can afford to hire the best legal team, and seems interested in seeing you in the poorhouse.
You literally can’t afford to hire any lawyer. You don’t even have a credit card that’s strictly in your name. You helped put your spouse through school. You managed his or her household, kept his or her children safe and well. You worked long hours, too. Maybe you even sacrificed your career, and now it’s unlikely you can earn enough to care for you and the kids at all, let alone keep the kids in the school they’re in now or pay for their college. You do not deserve to be set out on the curb with the kids for a pittance so your ex-spouse can go party. Your contribution to the household was labor rather than money, but if your spouse had paid for a nanny, a household manager and all the other roles you filled, he or she would be a lot less wealthy now.
I recently found out there is a legal solution to this problem. As far as I can tell, it’s done in most states, but if anyone knows more than me, please feel free to share. At some point last century, the law realized how unfair all this was, and set up something called pendente lite: you can ask a lawyer to sue your ex-spouse up front for the expected legal fees, in order that she or he may represent you properly. If there’s a huge difference between your income and your soon-to-be-ex’s, the judge can make your spouse pay the legal fees so that it’s a fair trial. The lawyer will still require you to pay something – at least enough so you can cover the cost of this short hearing. But this will be a lot less than the overall fees. This also sometimes applies to modification suits (i.e., when your spouse sues to reduce the spousal or child support you were awarded in the divorce).
Some divorces are simple: you may only need a lawyer to demand what’s fair, show up in court one day, and everything’s settled. Or you may negotiate with your spouse for months. Or your spouse may try to hide his or her assets in order to pay less in spousal and/or child support, and your lawyer will need to do some digging to find how much your spouse is really able to pay. In most states, when a judge is looking at support, the top considerations are: what the paying spouse can afford and what the paying spouse needs. They try to be fair to everyone, but if your spouse does a good job hiding things, you will need a good lawyer.
Why can’t I represent myself?
You can, legally, but this is going to be one of the most emotional times of your life. Are you really up to doing tons of research very quickly, and hoping you know what you’re doing? What you read on the internet and what lawyers and judges actually do can be very different.
What about affordable legal aid?
Cheap legal aid generally means kids fresh out of school who lack experience. This is fine if you’re having a friendly divorce where no one’s bitterly trying to take the other person to the cleaners. But if your wealthy spouse has suddenly decided you don’t deserve enough to live above the poverty line, you need better representation. Why limit yourself, when there’s a legal remedy for your situation?
Maybe I should just agree to whatever so it’ll be over
The financially disadvantaged spouse really needs to be as aggressive as possible. I’m not talking about asking for the moon and making the divorce as difficult as possible because you’re angry. A good lawyer can advise you on the highest reasonable amount of support and property division to ask for, and also tell you the least you should accept. Take support: you may think a certain amount sounds great right now, but you have no idea how much the cost of living may skyrocket in the next few years. If that happens, getting an upward modification of your support would involve yet another trial and more costly litigation. It’s better to get everything ironed out up front – then you can truly move on.
A good lawyer can also suggest things you’ve never thought of. Should you demand that your spouse buy you health insurance? Can you write into the divorce that she or he will pay for the kids’ college tuition? Some spouses have gotten these items. Others have gotten a lump sum to spend on career training so their ex won’t have to pay alimony forever. Particularly if you have kids, you don’t want to end up with too little money to give them the best start in life. And you deserve consideration, too. Don’t let feelings of depression or grief distract you from the reality of the situation.
If you’re lucky enough to have a spouse who’s reasonable and wants the divorce to be fair, you may be able to work out an arrangement with mediation or some other form of relatively cheap legal services. But if your spouse has a lawyer, you need one, too. Don’t let anyone tell you that lawyer will work out something fair for both of you – he or she can only work for one of you at a time, and lawyers have a legal obligation to be as aggressive in their client’s interests as they can.