When you are contemplating the ending of your marriage, one of the first decisions you need to make involves choosing how to proceed. Can you proceed without legal representation? Is a DIY divorce even possible? The quick answer is yes, but is it a good idea? Likely not. Before you embark on this path, it is strongly advisable that you at least invest the money in an initial consultation with an experienced divorce attorney. Only then can you assess whether a DIY approach makes sense for you and become informed as to the boundaries of a fair and equitable resolution.
Is your spouse going with a divorce attorney?
If your spouse has decided to retain a divorce attorney, choosing to represent yourself would likely never be a wise choice. Such a path would necessarily present an uneven playing field, and one that would not be to your advantage. Without question, a layperson’s lack of knowledge as to the law would present a tremendous impairment to a goal of reaching an appropriate divorce settlement. This imbalance could result in a divorce where property division, debt allocation and child-related matters are decided in a way that is unfair or inequitable to you. There also can be misunderstandings as to the meaning of the legal phraseology utilized that could result in terms that you did not intend and did not understand you were signing up for. As divorce settlement agreements are not generally modifiable or correctible as to non-child related issues, they are not to be entered into casually. Here again, these risks can be reduced by having a prior consultation with an experienced divorce attorney. They can be further reduced if you have that attorney review the final written document before signing it! What might seem to be a simple error or omission in your paperwork can set you up for serious long-term consequences.
Do divorces have to be contentious?
If you are considering a DIY divorce, it is likely because you are trying to either save money or you want to keep the process simple and non-combative, or both. That is perfectly understandable, even laudable. However, having legal representation guide you through the pitfalls of the process does not mean that it will be more contentious, and, it can be value enhancing, not just an added expense. For example, tens of thousands, even hundreds of thousands of dollars can be lost through an uninformed settlement agreement. Assets can be greatly under or over-valued or not even considered at all. Tax consequences can be triggered by a particular property division approach that could have been avoided or are simply overlooked, resulting in unintended tax liabilities.
To achieve your goal of having an amicable divorce, consideration can be given to participation in a “collaborative” divorce. This is where both spouse’s attorneys are trained in collaborative law, approaching the process with both a commitment and agreement to work toward resolution without resorting to litigation through the court. For people who are committed to resolving their divorce in a non-confrontational and cooperative way, this could be a good path for you.
Mediation is also a valuable tool in reaching amicable settlements divorce proceedings. Through mediation, the parties, with counsel, work with a trained mediator to reach an Agreement as to all issues presented by the divorce. Once the Agreement has been reached, it is reduced to writing, signed by the parties and filed with the court without the necessity of appearing in court.
Is your case suitable for a DIY divorce?
Even if you adhere to the advice to consult with an experienced divorce lawyer prior to embarking upon the process and make certain that any Agreement reached is reviewed prior to signature, your case may still not be suitable to a DIY divorce. Consideration of the following factors should be given prior to making your determination.
- The size and complexity of your marital estate. Are your assets simple, i.e. cash amounts held in an account, 401k and a home? If so, valuing and dividing can be fairly straight forward. You will still need help in dividing the retirement accounts to avoid triggering taxes, but reaching an agreement in principal can be straight forward. If the assets are more complicated however, such as multiple rental properties, closely held corporations, family partnerships, personally operated/owned business interests, beneficial interests in trusts, tax consequences attached to an asset and the like, you will greatly benefit from the advice and guidance of an attorney.
- If there are issues of a spouse having brought assets into the marriage or gifts and inheritances during the marriage, special factors may apply requiring the advice of counsel.
- If there are unequal earning abilities or a spouse has a medical or mental impairment, special factors may apply requiring advice of counsel.
- If a spouse has expended money during the marriage in a way that does not benefit the marital unit, such as gifts, travel, entertainment of a 3rd party, issues of dissipation may be present and you could benefit from the advice and direction of counsel.
- If there is a prenuptial agreement, advice of counsel as to its application and interpretation can be beneficial.
Abstract: Divorces do not always have to be combative. If your divorce is simple and amicable, you may manage to go through the process yourself without only limited help of an attorney. This article looks at the kind of circumstances in which a DIY divorce would be a reasonable choice, and the ones in which an attorney would be an important ally.