Why Hiring a Divorce Attorney First Is Often a Strategic Mistake

You might be surprised to hear this, but the number one thing most couples miss in divorce is often the very first step they take.

Most people assume that the moment they decide to separate, they need to run out and hire an attorney immediately. However, hiring a divorce attorney before you have agreed on a process is what I call putting the cart before the horse.

In my experience, doing this is exactly the opposite of how you should approach your separation. Most couples I work with don't realize that they can actually create their own process. They assume the system is the system.

The reality is that you have the power to build a pathway that works for your family. If you run out and hire a professional first, their specific business model will dictate your path rather than your path dictating which professional you hire.

If you hire a litigator, you have effectively chosen litigation. You have committed to a specific, often adversarial process before you even know if it is the right path for your family.

Driving the D Car vs. The Backseat

I often use the analogy of "Driving the D Car" to explain this dynamic to my clients. You have to ask yourself where you want to be with your spouse in this process.

Do you want to be in the driver's seat, working together with your spouse to reach your own agreements because you agree on a lot? Or do you want your attorneys driving the car while you sit in the back seat?

This distinction is critical. If you hire a traditional litigator who is used to driving, they are going to drive you straight to court. It is simply what they do.

If you go to court, you lose control of the process. You are handing over your schedule, your assets, and decisions about your children to a judge who does not know you. To retain control, you need to find professionals who are willing to sit in the backseat and help navigate while you drive.                            

I was talking to a client recently who was nervous about giving up control to the collaborative process. I explained to him that while he was giving up total autonomy, he was retaining the ability to choose his path.

By choosing a process where he and his spouse were in the front seat, he kept the decision-making power within the family.

The "Golden Rule" of Attorney Selection

There is another massive risk to hiring blindly. It involves what I consider the number one decision that affects your divorce outcome, and it isn't even about you.

It is about who your spouse picks for their attorney.

You can be the most reasonable, prepared, and cooperative person in the world. You can hire a consultant who supports your desire to stay out of court. But if your spouse goes out and hires a shark who believes in scorching the earth, you are going to court.

You cannot be cooperative alone. If they pick the wrong person who drags you into court, you are stuck.

I recently had a couple reach out to me who agreed on almost everything. They just needed to put their agreement in writing. I helped them functionally structure their plan and suggested they have an attorney draft the final memorandum.

I didn't hear from them for a few weeks. When I finally did, I was shocked to learn they were heading to court. It turned out the husband had gotten a referral from a friend for a traditional attorney who convinced him to litigate.

It cost them a ton of money, wasted a huge amount of time, and created unnecessary bitterness that damaged their ability to co-parent.

This is why I give the advice that sometimes sounds a bit odd to some people: You should pick your attorneys together.

Of course, I don’t mean you share the same lawyer. I mean, you should coordinate the process. You should sit down and agree on a list of, say, five to seven professionals who are collaboratively trained and skilled in alternative dispute resolution.

Give them a quick call, interview them, and agree that you will both pick someone from that specific pool of lawyers you both approve of. This ensures that each of you will have advocates who are committed to the same goal of keeping you out of court.

Choose Your Path First

If you want to work together with your spouse, you really need to stop and think about the path before you think about the people. You have several options to consider before making that first hire.

• Collaborative Divorce: A structured process where you and your spouse agree upfront not to go to court. This often involves a team of neutral financial and mental health professionals to support you.
• Cooperative Mediation: Working with a neutral third party to facilitate an agreement. Attorneys often act only as consultants rather than lead negotiators here.
• Kitchen Table: Working it out informally between yourselves. You might use limited professional guidance just to handle the paperwork.

You want to figure out the path that you can use and that works for both of you. Once you have decided that you want to avoid court and minimize conflict, then you go find the right professionals to support you in that specific journey.

When you interview these professionals, you need to ask them explicitly about their role. Ask them directly: "Do you want to drive the process, or are you okay with us driving and you supporting us from the backseat?"

It matters because some professionals are simply better at one or the other.

The Risk of the Wrong Hire

The reality is that some attorneys simply cannot work with a cooperative client because it is not how they are set up. Their business model and their personality are built for fighting.

If you want to ‘Drive the D Car’ together but you hire someone who insists on taking the wheel, you are going to end up in a conflict you didn't ask for.

If you pick a process like litigation by accident just because you hired a litigator first, you are likely setting yourself up for higher costs, more stress, and a worse outcome for your family.

On the other hand, if you choose a process like collaborative divorce, you are putting a "shell" around your family that protects you from your own worst instincts. It forces you to slow down, communicate, and keep external pressures like opinionated family members out of the negotiating room.

So instead of rushing to the phone book or asking a friend for the name of the toughest lawyer in town, sit down with your spouse. Decide your process first. Once you know the destination, then you can hire the right team to help you get there.

If you are unsure which path is right for you, or if you want to understand how to build a professional team that actually supports your goals, reach out to us. We can help you devise the right pathway and ensure you don't end up paying for a conflict you never wanted.