By Lisa Thomson

During a divorce you will require legal advice and assistance to divide assets and settle support issues.  I have never heard of anyone divorcing amicably, unrepresented.  However, if your divorce has gone beyond the basic requirements and you find yourself forced to engage in legal matters, then at this juncture, you’ll have to make a tough decision.  Do you continue dwindling your children’s college fund to pay for legal costs or do you defend yourself?  What are your costs and what are you possibly risking by taking either one of these paths?   Either way, you risk a loss and I know from experience it takes a desperate situation to represent yourself.

When my ex-husband decided to continue litigating following our divorce trial I was faced with this very decision. Do I go into debt in response to the Appeal or do I go ahead and research and attempt self representation?  As I said, desperate situations call for desperate measures.  Unfortunately, a person can find themselves in a similar situation when their adversary has the economic advantage over them. Divorce is often appealed based on a low bar of legal justice.  (See Divorce Law, Protect or Infect) Rather, appeals are often pursued in the off chance a person will get a better ‘deal’.  In other words, everyone has a right to Appeal a divorce judgment, therefore it is very common for these to be filed without much legal merit.

Following an expensive divorce trial, I was tapped out financially, as most people are in this same situation.  When I spoke with my lawyer about the upcoming Appeal, he said that he will need a $10,000 retainer just to respond to the appeal file.  He estimated the costs at $50,000 to defend the trial decision at Appeal. This left me reeling. I had to make a weighty decision.  I had to look at the cost vs. the risk of continuing on this path.

If you are faced with a similar situation how do you weigh the cost vs. risk?

First, take your worst case scenario. That being your opponent gets everything they ask for.  What does that mean for you and how much money will you lose?  Secondly, if you have a lawyer how much money will you spend to protect against that loss?  Thirdly, look at the difference in the numbers.  Are you going to spend more money than you are defending?  How much more?  Are you likely to spend less than you risk losing?  If so, then perhaps it is worth retaining your lawyer.

Bear in mind that what a lawyer estimates as their costs could end up being much greater.  For example, when your case is an active file you may receive bills from $1,000 to $5,000 just for innocuous work, like a review, or photocopying, or phone calls. These add up quickly.  Also, remember that there are no guarantees your lawyer is going to win your case. A full-on court loss as a represented litigant could be devastating as you’ll have to factor in not only the money you will now owe your ex, but also what you’ve had to spend on legal fees.  This leads us to lastly, consider the facts of your case.  What is the likelihood that a judge will be swayed in your favor? Is this a family law case or something else altogether?  If it is your divorce it should be straightforward.  You should have full knowledge of the facts unlike a business lawsuit which would rely on several witnesses and be much more complex.  In other words, if you’re a defendant in a case of which you are knowledgeable, it would make more sense for you to consider self representation.

Do understand that self representation takes a great deal of dedication, research and doing your homework. You do have to be up for the task and willing to educate yourself. This should include seeking help from free legal services wherever possible. Often courthouses have duty counsel who can answer legal questions you may have. For more on self representing, read Do’s and Don’ts for Self Representing In Court and Self Representing In Your Divorce?

If you decide, after careful cost vs. risk analysis, you must have a lawyer, how do you know a good lawyer from a bad one?  That is a challenge since you won’t know for sure until they are working for you.  Here’s my list to get you thinking about it:

A good lawyer cares about your case;  A bad lawyer doesn’t remember your name

A good lawyer explains the risks in your case;  A bad lawyer will tell you he can ‘win’ it for you

A good lawyer bills reasonably; A bad lawyer bills out of control and increases their fees without notice

A good lawyer takes action to look out for your best interests; A bad lawyer is more concerned about their relationship with the opposing lawyer

A good lawyer isn’t afraid of going to court (with all risks considered); A bad lawyer will avoid court at all costs, possibly pressuring you to make a last minute deal

A good lawyer listens to your instructions; A bad lawyer does not act according to his client’s instructions

A good lawyer returns your phone calls within a week; A bad lawyer disappears

A good lawyer is organized and knows how to address a Judge; A bad lawyer forgets documents and makes excuses to the judge

I hope the above list helps you understand what to look for in a lawyer. Whether you’re a defendant/respondent or the plaintiff, you look for the same good qualities in your lawyer.

I am not a proponent of self representation. In spite of the few complaints I put forward about lawyers, it is a fact we would be lost without the good ones.  However, if you are considering risking the value of your home, or RRSP (retirement savings) with no guarantee of success, you must conduct your legal cost vs. risk analysis. During your divorce, you have no choice except to engage legally as a defendant or a plaintiff. Make sure you’re doing it in a practical way that makes sense for you and your case.

It’s a good habit to analyze your financial and legal situation before retaining a lawyer. The bottom line is you need to know what you’re risking and how much it will cost you to defend it. Win, lose, or draw, after conducting your own legal risk vs. cost analysis, you’ll know you’ve made a careful decision for your future.

image source; Erin Smith Art- used with permission

Copyright 2012 updated in 2018, by Lisa Thomson.  All rights reserved.  No part of this article may be used or reproduced in any manner without written permission.  For information or permission to use this article please contact theauthor.