South Dakota Family Law - Don't Use Your Car Mechanic To Fix Your Broken Leg!

I couldn’t believe what I was hearing. A marriage counselor was telling my client that he didn’t need an attorney to handle his divorce and that she, the counselor, would work with both spouses to reach agreements regarding their financial future, as well as those of their children. The counselor had no legal training whatsoever and was hired years before to help their marriage. My client, quite rightly, didn’t trust the advice and called me inquiring as to my opinion.

“OF COURSE you need an attorney!” I told him.

“You have assets, debt, a good income and small children. Do you want a marriage counselor to be responsible for a fair and equitable distribution of your property? Most importantly, do you want that counselor to decide how much time you spend with your kids and, consequently, how much child support you are going to be responsible for? Would you trust her to give you heart medication?”

My client didn’t need to think too hard. “Well, since you put it that way, I would go to a heart doctor to prescribe heart meds. How can you help me?”

I went on to explain the rights and responsibilities that a man in his position has toward his soon-to-be-ex wife and his children. We discussed issues of property division, alimony, and custody/visitation/placement. I explained what a guardian is and that one may be necessary if an agreement couldn’t be negotiated as to placement of the kids. We talked about his pension plan and how a Qualified Domestic Relations Order (QDRO) could be needed to divide interests in that plan. Needless to say, my advice and explanations were radically different from what he heard from the marriage counselor trying to mediate his divorce. And the reason is obvious: a marriage counselor counsels spouses when communication breaks down. An attorney uses their education and experience in the best interest of one spouse to negotiate for and protect their rights in a highly emotional and adversarial legal setting. Apples and oranges, right?

Unfortunately, many people and even other professionals like the counselor do not understand what attorneys really do and how they may not be qualified to proceed through the legal system alone. Worse, a therapist or counselor may understand the proper role of an attorney, but might be looking to profit over the demise of a marriage which they were originally trying to save. This latter situation is unethical and unforgivable.

Often, I meet people going through a divorce or trying to manage a criminal case. Many want to know their rights. I help them with that. Many, however, are looking for comfort in a more therapeutic way. When I sense that a client is depressed, overly anxious or struggling with substance abuse, I make it a priority to recommend counseling. Yes, it costs money, but one usually cannot make the hard decisions necessary in a legal case if they are suffering. I am not trained to help in those circumstances and rely on professionals who are to heal and sustain my clients. I know that most mental health counselors refrain from giving legal advice and refer clients for legal counseling to an attorney when the situation arises.

Friends and family. They love you to death. They want what’s best for you. They want you to be able to move on from the pain of a divorce. Or at least they want you to move off of their couch! Regardless of their motivations, the same rule applies to friends and family as it does to the professionals: would you trust your dad to give you medication for your heart or an anxiety disorder? Unless he is a cardiac surgeon or a psychiatrist, the answer is probably “no” once again. Just because he’s had a heart attack doesn’t give him license to direct your health care. Likewise, dad shouldn’t advise much in your divorce. Because he’s been married six times doesn’t make him an attorney or a judge. Find an attorney you are comfortable with and follow their lead.

The bottom line is, if you, or someone you know, is dealing with a family law matter and is being encouraged to go it alone, please ask them if they would take medication given to them second-hand from a person who isn’t licensed to prescribe them. Odds are, their answer will be “no”. Therapeutic counseling belongs with counselors, therapists and doctors who are charged with healing. Family and friends are there for moral support. Legal counseling is up to attorneys who are charged with protecting your rights.

Charles Huff
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Family Law and Criminal Law Attorney