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11 Oct 17

Can we start the divorce over if I get a new lawyer?

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You may be frustrated with the manner in which your divorce case is proceeding. Part of your frustration may center around what you perceive as the performance of your attorney. If that is the case, you may be pondering getting rid of your current attorney and wonder what will happen if you do so. You may even wonder if you replace your lawyer with a new one, can you start your case over.

Replacing a Lawyer in a Divorce Case

You may have a reached a juncture at which you feel the need to replace your attorney in your divorce case. There can be a myriad of reasons why a person elects to change attorneys during the midst of divorce proceedings.

As a general rule, unless there is demonstrable misfeasance or malfeasance on the part of your attorney, your divorce case will temporarily be put on pause to allow time for your new counsel to get on board and become familiar with the case. What will not happen is a reset of your case. What will not happen is starting your case over from the beginning.

A moment ago, reference was made to attorney misfeasance or malfeasance. The circumstances surrounding what happens in the event your attorney has engaged in some sort of misconduct in your case does have an impact on what happens in regard to your litigation when a new attorney gets on board.

Although highly unlikely, there are rare circumstances when a divorce lawyer has engaged in such significant misconduct that a court will reevaluate what has occurred in the case to date. The court may rescind decisions previously made because justice warrants that type of action because of the misconduct of a party’s attorney. In other words, the court can do something like a start over when attorney misconduct is so severe and pervasive it has impacted the decisions made to date in a divorce case.

The Model Standards of Practice for Attorneys

The American Bar Association has promulgated what it calls “Model Standards of Practice.” The include Models Standards of Practice for divorce attorneys.

The Model Standards of Practice set forth what an attorney should or should not do when representing a client in a divorce case. Each state has its own code of professional conduct for attorneys, which oftentimes is similar to the Model Standards of Practice.

Reviewing the Model Standards of Practice can provide you some insights into what your attorney should be doing in your case. The Model Standards of Practice can assist you in making at least an initial determination as to whether or not your legal counsel is representing you appropriately in your divorce case.

Consult with an Attorney

If you truly are dissatisfied with your legal counsel, and desire to find a replacement, you need to begin the process that permits you to consult with and ultimately hire a new attorney. Another attorney will face limitations in what he or she can consult with you about while you are still represented by counsel. However, you likely will be able to have at least a preliminary meeting with a potential replacement lawyer.

Once you have started this process, you will need to prepare written notification that desire to terminate your existing divorce lawyer. You need to keep in mind that the court will be involved in the termination process.

When you provide notice to your attorney of your desire to terminate his or her services, that legal counsel must then file a motion to withdraw from the case with the court. You need to clearly understand that the court does not have to permit an attorney to withdraw from a case. Indeed, a court will be reluctant to permit a change in representation if you have reached the final phase of your divorce proceedings. The court is not likely to allow you to change attorneys if appears to the court that your only real desire to seek new counsel is to delay the case or to gain some type of strategic advantage.

Can I prevent him from converting the separation into a divorce?

You cannot stop your spouse from filing for a divorce whether you are legally separated or not. Marriages are entered at free will, and the decision to exit is also at free will. Many people are not sure on the difference between divorce and legal separation. A divorce is the dissolution of a marriage. In a legal separation, on the other hand, a couple remains married but lives separately.

Why Legally Separate Instead of Divorce?

In a legal separation, the couple can work out their issues before a divorce. It acts as a step of preparation. They can decide how they will distribute financial duties and how custody arrangements will work.

A legal separation is a temporary option allowing the two individuals to resolve their issues. If they decide to get back together, then they can do so without having to worry.

Whether one chooses a divorce or legal separation is based on their preferences and what works for their family.

There are also states that require couples filing a no-fault divorce to legally separate first for a set period of time usually 6 months to a year. After this period if they still feel a divorce is the only option then they can go ahead with it. A separation agreement is signed and after the specified time it becomes a divorce agreement.

Couples can opt for legal separation instead of divorce for a number of reasons that have been discussed above. This is done at the couple’s discretion. Legal separation could turn into a divorce in states where it is mandatory to legally separate before divorce. However, legal separation is not divorce and does not have to be unless couples determine that they want to move on from one another.

Divorce can be contested or uncontested. In an uncontested divorce, both individuals have agreed to the basic issues in the divorce such as child custody arrangements, spousal financial support, and property division. If all of these issues are resolved, there is no need to go to court and the divorce can be finalized without any issues.

A contested divorce is one where the two spouses cannot agree on the terms of the divorce. It could be that one party wants too much alimony, or the two are in disagreement on child custody arrangements. Whatever the scenario, contested divorces have to go through a court process where a judge decides who gets to live with the children and how much spousal support will be given, if any.

If you want to stop a divorce between you and your spouse, you cannot do it legally. You may opt for mediation to resolve the issues between the two of you if your spouse agrees to it.

Mediation is a beneficial form of conflict resolution where a neutral party steps in to help you determine the cause of your problems and find a solution that is for the two of you. Often, you might find that divorce is the option and vote to go on with the divorce process willingly. In other cases, you and your spouse might realize that the relationship is salvageable and decide to sort your issues out.

The Process of Divorce in All States

You first have to either get a divorce lawyer or visit the county clerk in your local government offices.

The attorney can file for a divorce petition without the permission of your spouse. If you visit the county office, then the process is the same only you will have to file for the divorce petition yourself. Your spouse does not have to sign the divorce papers.

On receipt of the divorce paper, they are given 30 days to respond. If they refuse to do so, then you will be granted an uncontested divorce by the court. It is always prudent to weigh your options before filing for divorce. A divorce lawyer will explain the implications of these decisions to help you make an informed choice.

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