When Is It Time to Reach Out to a Divorce Attorney?

By Jeremy Masys

There are few, if indeed any, more stomach-churning communications in life than making that first phone call or sending that first email to a divorce attorney, especially one you don’t know personally. Indeed, it is not uncommon in my practice to hear from people whose spouse moved out years ago – or in some cases, where both spouses continue to live in different rooms in the same residence long after the marital commitment has ended – but who are only now speaking to a family law attorney for the first time.

Why do some wait so long to contact a divorce attorney? Certainly every situation is unique, but many people consciously or subconsciously feel that speaking to an attorney about their situation is waving the white flag of defeat over their marriage. Or that speaking to an attorney about a potential divorce will “make it real.” Others worry there will be no going back to the hope of a functional marriage after speaking to a divorce lawyer, or that consulting with an attorney will make their spouse angry.

None of these are exactly true. Okay, except maybe for that last one about making your spouse angry. But two quick things on that one: 1) there is no reason your spouse has to know about your own confidential communication with your own attorney about the steps you may need to take to protect your own future, finances, and rights; and 2) even if he or she does know, his or her decision to become angry (as opposed to, say, addressing the issues in the marriage) may be the least of your concerns, and, in any case, should not take precedence over the obligation you owe to yourself to make sure you can build a stable and secure future should the marriage indeed come to an end (more on this below…).

Does this mean be a jerk with no concern for the emotional well-being of the person with whom you hitherto shared a life and what you thought was a future? Not at all, but it does mean if there was ever a time to take some relatively simple steps to understand how state law will affect your rights and obligations with regard to spousal support (aka alimony), child support, child custody, visitation, splitting up property, and any other related family law issues – and what steps, timeline, and financial costs may be involved with obtaining a potential divorce – even if it perhaps means making an unhappy situation a bit more contentious, that time is when you are seriously considering divorce and/or married to a spouse who is seriously considering divorce.

Divorce Consultations Are Generally About Analysis and Understanding, Not Declaring War

When you have an initial consultation with a reasonable, thoughtful, and strategic divorce attorney (and by that I mean not an attorney who sees you as an emotionally vulnerable mark to be financially drained via creating unnecessary fighting, litigation, and delay, all generally at your great expense – yes these lawyers still do exist, and are to be avoided at all costs…), the focus will be on understanding your specific situation and the attorney explaining to you:

  • how the law might impact your situation, in terms of both financial rights and obligations as well as relationships with your children;
  • what steps will be necessary to achieve your goals, including the avoidance of potential legal pitfalls you may or may not be aware of; and
  • what your various options and approaches are for achieving those goals, e.g. beginning an amicable negotiation between you and your spouse with no lawyers directly involved, or, in other cases, planning an involved legal strategy that results in your spouse being surprised by a process server handing them a very thick envelope.

In any case, the first consultation is, in most cases, not about filling out and filing legal papers from which there is no going back. (Although there be emergency situations involving domestic violence, theft, child abduction, etc. that may indeed require such actions.) A quality lawyer will instead want to have a friendly, relaxed, pressure-free conversation about the topics in the above bullet points, all for the purpose of providing you with information and support in what can be done on your behalf.

Whether you want to have a second or third consultation or indeed go ahead with filing for divorce (which even then won’t be final for at least six months in California, and you and your spouse always have the opportunity to reconcile and withdraw the action prior to finalization) is entirely up to you.

I’ve had numerous consultations with both men and women regarding potential divorce scenarios who ended up reconciling with their spouses, determined more than ever to make it work. Less work for me, obviously, but a seemingly positive outcome for them (I honestly don’t know whether it’s positive or not, and it’s certainly not a lawyer’s job to know that). But reconciliation is often not in the cards, and the more information you have early in the process, the better it is for planning for the best outcome possible and avoiding unnecessary grief and expense that can come as a consequence of willful, if well-intentioned, ignorance and delay.

At any rate, I or any other attorney am not there to tell you whether to get divorced or to give it one more try, but instead to give you realistic outcomes, options, and strategies should that scenario come to pass, whether by you making the decision to file or your spouse making that move.

What You Don’t Know About Divorce Law Can Hurt You. Badly. For a Very Long Time.

When two people finally have the “it’s over” conversation, there’s usually not the pots-and-pans-flying, wedding-ring-tossed-at-the-other’s-feet theatrics of movies and TV. Instead it’s often an uncinematic somber moment of words finally being spoken – after months or years of those words going unspoken – between two people that for years genuinely wanted and worked to build a life together, but, for one or thousand reasons or another, that didn’t work out as planned. Which can be emotionally overwhelming, to say the least.

In that moment, some combination of the phrase “no lawyers” is often spoken. It might be said to cut the tension, to put a salve on the emotional bleeding, or to save costs at the same time one self-supporting financial unit is severing into two. But it might also be said to cut one person off from understanding just what their legal rights are in the divorce.

And even if the suggestion does come from a genuinely positive (albeit ignorant) intention, things can change quickly when the emotional relief of finally “moving on” turns into the harsh reality of financial hardship and confusion of living on one’s own, not to mention the emotional hangover of resentment and anger related to the end of the relationship that can begin to throb ever more brutishly when the haze of the breakup wears off and the world can start to seem like a cold place where all bets are off.

While one spouse may be dutifully going along with the “no lawyers” commitment for months, the other spouse may be talking to a lawyer on their own (and not necessarily the reasonable, ethical, let’s-work-this-thing-out kind of lawyer), and making all kinds of financial and legal decisions, proper and otherwise, without your knowledge and to your great long-term detriment.

You can certainly speak with an attorney for the first time (or the tenth time) at any point in the divorce process up until final judgment (and even afterwards in some cases), but waiting to understand what your rights and obligations are – not to mention what steps you can begin taking now to protect your assets, legal rights, and family relations – can cause damage to your own interests that may get harder and harder, if not impossible, to remedy the longer you wait.

And understand this, divorce is often not a singular event where you just walk away – you’re not SO’s, you’re spouses. There are a lot more ongoing obligations and restrictions that come with ending a marriage than many people realize. You could be paying spousal support (or losing your ability to receive it) for years and perhaps decades. Your relationship with your children may be negatively impaired by a court order until they graduate high school.

Point is, you could be living with the long-term consequences of not seeking out legal advice and potential representation for a long, long time after your short-term reasons for not speaking to an attorney – i.e. because a person who will most likely dramatically fade from your day-to-day life said “no lawyers” during an extremely emotionally vulnerable moment – have disappeared into the past.

You’re Going to Be On Your Own Now, So Start Taking Care of Yourself Now

Even in the not-great marriages that end in divorce, there are still often a lot of good things that get taken for granted until they’re gone. You had a friend, a teammate, a partner in the you-and-me-against the world story of every marriage, even if the world might have won this time. Basically, you had someone watching your back.

Now, you’re most likely going to be in charge of watching your own back. Which you might get on some level during the beginning of the end, but which you really won’t truly understand until it’s just you with the bills, the taxes, the grocery shopping, the insurance forms, the cleaning, the dinner party, the broken garbage disposal, the TSA line on your Christmas trip back to Texas, and the dog that wasn’t even your idea.

This can be liberating in many ways, and that is genuinely something to be celebrated, but transitioning from a two-person team to just you can be pretty crappy in a lot of other ways. If it’s not you that’s taking responsibility for doing something, it’s not getting done. And you might even know what to do much less how to do it.

But you’re going to learn. Not just the practical what-to’s and how-to’s, but the general mindset that you and you alone are in charge of taking care of yourself for the next while, and that means doing what you need to do for yourself even when there’s not someone reminding or asking, much less nagging, you to do so.

One of Dr. Jordan Peterson’s “12 Rules of Life” from his bestselling 2018 book is, “Treat yourself like someone you are responsible for helping.” Whatever you think of him, that one’s a tough rule to argue against. And yet one we rarely actually follow. He makes the point that statistics tell us we’re more likely to give our dogs their proper medication than we are to take the medication we ourselves need. And a dog won’t be happy if its owner is incapacitated by his or her lack of self-care.

If you had a friend ending a marriage where there were significant finances and family relations at stake, would you advise them that, whatever they do, they should avoid taking the opportunity to learn about their rights and obligations under the law from a skilled professional? I hope you wouldn’t, and I hope you would treat yourself with at least the same level of care and concern.

So, Wait, When Is It Actually Time to Reach Out to a Divorce Attorney?

You might have missed the answer to the question posed by this post about 1400 words back or so. Because it’s a pretty short answer. Once again, the answer is:

  1. When you are seriously considering a divorce
  2. When you have reason to believe that your partner is seriously considering a divorce

It’s that simple, even if everything else in your life at this moment feels as far from simple as possible.

At the risk of sounding like cheesy lawyer marketing, you don’t have to do this on your own. You really don’t. No matter what anyone else might say or think about it. Let them say or think what they want. And certainly don’t feel like you have to let them know about everything you do, i.e. consulting with an attorney. Instead, focus on getting done for yourself what needs to be done. And you’ll learn that doing that often means asking for help, even when it feels scary and hard to ask.

There is, or course, the issue of money. A basic downside of a consultation with a divorce attorney is the cost. I provide by-the-hour consultation in addition to full and limited-scope representation in California family law matters. Whether you are seeking a one-time consultation or immediate representation, in our first session I’ll ask questions, you’ll give answers, we’ll talk about the law, and we’ll talk about your options. What you do after the consultation will be entirely up to you.

(On the topic of cost – and this is certainly the subject of another blog post – be highly suspect of “free” or very low-cost consultations. And don’t be surprised if it turns out to be a mostly substance-free sales pitch for you to hire that lawyer to file for divorce ASAP and rack up some mighty high bills in a drawn-out, needlessly complex legal battle.)

You may be one of the lucky couples who can mostly resolve all the issues of their marriage and navigate the family law courts to achieve that result without significant help from attorneys. But even a one-time confidential consultation to help you understand the law and procedures and available resources as they apply to your specific situation can go a long way in helping to achieve that ideal outcome.

And, again, even if for some reason your spouse does become aware of and upset over the fact that you consulted with an attorney, well, that is the definition of “not your problem.” Ask yourself this: does their negative reaction to you taking steps to understand this highly consequential legal process you’re entering into come from a place of concern for you and your well-being? Highly doubtful.

Remember: responsibility and concern for you and your well-being both now and for years into the future is now a job held by one person. You. Carries out the duties of that job wisely. Starting now.

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