Unbundling of Legal Services in Divorce

There was a day when the only way to get help from a lawyer in divorce was to hire a lawyer, pay a huge retainer, and losecontrol. A few people still do that these days, but not many. Increasingly, people in divorce are using a concept called “unbundling.” Coined by family lawyer and mediator Woody Mosten in 1993, unbundling has the potential to make huge changes in the way we move through divorce. Like a picky eater in a spiffy restaurant, the divorcing party stays in control, using and paying only for those services he or she really needs, in each case contracting with the person best positioned to provide them.

Good Things About Unbundling

Let’s be honest. Perhaps the biggest selling point for unbundling is that it costs less. When you do most of the work of your divorce yourself and bring in an attorney only when you need one, you save money.

But that’s not the only benefit from unbundling. It also allows you to stay in control. You decide what issues tonegotiate. You decide when to discuss what.

Because unbundling almost inevitably results in more contact between you and your spouse, it sets a pattern for both of you built around your sitting down and working out the issues between you, rather than relying on someone else to do it for you. You’ll need to do it soon enough, so you might as well get started now.

This last one is a little more calculating. If you’re dealing with a difficult spouse who’s hired a lawyer, and if you’re reasonably confident you’ll both be paying your respective legal bill with no contribution from the other spouse, unbundling can provide you a critical negotiating advantage. Every time there’s a meeting involving your spouse’s lawyer, every time your spouse’s lawyer writes a letter, every time your spouse’s lawyer makes a phone call, your spouse pays more money, and you don’t.

You’re way ahead of me, aren’t you? Before long, your spouse will figure out that this process is costing them more money than it’s costing you. That means your spouse may eventually make concessions to end the fighting that they wouldn’t make otherwise.

Risks With Unbundling

With all the freedom of unbundling comes responsibility. There’s no one else making sure you file your pleadings on time; that’s up to you. There’s no one else making sure you gather all the information you need for your inventory; that’s up to you. There’s no one else making sure you structure your support package in the right way to help you live after divorce; that’s up to you. Your coach can give you lots of background information and make suggestions, but it’s your job to make sure you apply it to your divorce and carry through.

Ironically, unbundling equips you with a great deal of power in negotiating with your spouse. You’re free to make concessions that make sense to you, not just to someone else. The problem with this is the risk that you’ll get caught up with this power and make concessions you’ll come to regret later. You might end up making a mistake with taxes, for example; or ignore the time value of money; or stay unnecessarily entangled with your spouse.

If your spouse’s lawyer is gearing up for an adversarial divorce and forces you to make a court appearance, you may be ill-prepared to discuss the issues that are to be resolved there. Judges tend to be impatient with litigants who are not represented, because they do tend to talk about issues the judge doesn’t need to know, ask questions the judge expects lawyers to know already, and make speeches about the issues that are premature or irrelevant. Consequently, judges sometimes have an automatic aversion to litigants who represent themselves in divorce court.

Unbundling Checklist

Here’s a list of questions you may want to ask your coach as you work through the issues of your divorce. They assume that you’ve already shared the facts of your marriage and possible divorce with your lawyer.

Before (and after) anything is filed:

  1. What key issues do I need to be especially careful about?
  2. How can I make sure I make good judgments about the time value of money?
  3. Is there any advantage to my filing for divorce early, before my spouse?
  4. What can you tell me about my spouse’s lawyer?
  5. How often do I need to check in with you?
  6. How can I get hurt because I don’t have a lawyer representing me?
  7. Finally, is there anything I’m asking you to do that you think I could be doing myself to save money and time?

After something is filed:

  1. What can you tell me about the judge?
  2. What are the critical dates I could miss if I’m not careful?
  3. Should I be doing any discovery? If so, can you help me do that in your role as coach?
  4. When will I be required to make a court appearance? Do you need to be there?
  5. How can I shift the burden of filing something to my spouse so my spouse will have an incentive to negotiate?

A Good Book to Buy and Use

If you’re serious about using unbundled legal services in your divorce, you may want to check out Sue Talia’s book called A Client’s Guide to Limited Legal Services – A simple and practical handbook for family law litigants. You can also tour a splendid Bibliography on Unbundling from my good friend Woody Mosten.

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