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DIY Divorce: What Could Possibly Go Wrong?

An increasing number of people are electing to get divorced without hiring an attorney. Broadly speaking, divorces without an attorney, which occur most frequently when spouses separate and believe they can agree on the terms of settlement, can be sorted into two categories: (1) divorces in which neither party has an attorney; and (2) divorces in which one spouse has an attorney, but the other spouse does not. Each of these situations presents the unrepresented party or parties with numerous potential unforeseen problems.

When neither party has counsel…

In recent years, many websites have popped up, promising to provide all of the forms and other information needed to initiate and complete a divorce — all without a lawyer. This has increased the number of couples who agree to separate and then undertake a “do-it-yourself” divorce. The greatest risk in these situations is that neither party benefits from the legal knowledge and experience necessary to determine how their unique factual situation fits into the divorce laws of their state. For example, forms found online for a “community property” state could be disastrous if used in an “equitable division” state, and vice versa.

For example, of all the property that the parties own, how much of it constitutes “marital property” that is subject to division upon divorce? Is this a 50-50 division case, or does one party have an argument that he or she is entitled to more of the marital property? Does either party have a legitimate claim to temporary or permanent spousal maintenance? What is an appropriate child custody arrangement and parenting time schedule? How is child support calculated?

Divorcing couples also often have ownership interests in marital assets that, without the benefit of experienced legal counsel and the financial disclosure counsel will insist upon, the parties may not appreciate to be marital assets. They may not understand how certain assets should be valued for divorce purposes (e.g., ownership of a business, pensions, stock options, money owed by a third party, trusts, frequent flier miles, etc.). Parties who divorce without counsel seldom undertake the complete and accurate financial disclosure to each other that is necessary before any agreement can be considered fair or informed.

Divorces in which neither party has counsel are usually premised on the assumption that the parties can agree between themselves on what is a “fair” resolution of their divorce — including issues of child custody, child support, spousal maintenance and property division. But without the benefit of legal counsel to guide a spouse on how state divorce law applies to the couple’s unique situation, a spouse risks agreeing to a deal that leaves him or her substantially less well-off than he or she otherwise would have been. Worse — absent fraud — property settlement agreements are non-modifiable once the divorce court approves them. As a result, a spouse who goes through a divorce without counsel, but then realizes months or years later that it was a bad deal, is often without any recourse to go back and modify the property settlement.

Divorces also involve tax issues that unrepresented parties often overlook, including the following:

  • the tax consequences of liquidating assets as part of the divorce
  • determining whether to file joint or separate tax returns for the last year of the marriage
  • addressing what happens if, after the divorce, a tax return filed during the marriage is audited
  • allocating the future dependent tax exemptions for the children

Most DIY divorce agreements fail to consider or address these and numerous other common issues.

In addition, forms available on the Internet and elsewhere tend to be “one size fits all” and do not effectively tailor themselves to the laws of a particular state. Further, drafting a settlement agreement that clearly allocates who receives what, and other rights and obligations of each of the parties, is not as simple as it may seem. DIY divorce agreements frequently omit the allocation of an asset altogether, or are ambiguous as to how assets are to be divided. DIY divorce agreements commonly allocate a liability (e.g., a mortgage, credit card balance, etc.), but fail to protect the interests of the other spouse in the event the party assuming the liability later defaults on it. Any divorce attorney can share stories about many cases in which they have been hired well after a DIY divorce in order to clean up the mess left by a poorly prepared settlement agreement — at a significant and otherwise avoidable expense.

There is a widespread but inaccurate assumption that as long as a divorce is “uncontested,” there’s no need to involve an attorney. But, in reality, the biggest risk to a party considering getting a divorce without an attorney is that “you don’t know what you don’t know.” Even in relatively amicable divorces, unrepresented parties frequently make enormous and consequential mistakes that are either very expensive to fix after the fact or, worse, cannot be corrected at all.

When one party has counsel, and the other is “going it alone”…

In other divorces, one spouse will retain an attorney, while the other will elect not to do so. The unrepresented spouse may be operating under several motivations. Sometimes, a couple will decide to separate in what they believe will be an amicable divorce, but they conclude that, as a way to avoid navigating a pure DIY divorce, one of the parties will hire an attorney “just to draw up the paperwork” and deliver the documents to the divorce court. In other cases, one of the parties may conclude that he or she is smart and sophisticated enough to handle the divorce without counsel, or that hiring a divorce lawyer is an unwarranted expense.

Whatever the reasoning, the unrepresented spouse often does not appreciate that the other spouse’s attorney represents the other spouse — and the other spouse only. Attorneys are ethically precluded from representing both parties to a divorce. The attorney cannot and will not provide the unrepresented party with any legal advice, guidance or advocacy.

Worse, this situation often lends itself to the attorney for the represented spouse essentially running over the unrepresented spouse. Divorce attorneys are often contacted — again, after the fact, when it’s too late to do anything about it — by prospective clients who were unrepresented for their divorce, during which a very lopsided settlement agreement was entered into at the instigation and drafting of the other party’s lawyer. These one-sided agreements may lock the unrepresented party into property settlement, spousal maintenance, child custody and/or child support obligations that greatly deviate from what any divorce court likely would have ordered. In those situations, it’s difficult to justify that any money was “saved” by not having an attorney.

When you may be considering options…

Divorce, by its very nature, involves complex and difficult decisions that are best made with the benefit of experienced and capable legal counsel. Even in situations where a divorce has the promise of being smooth and amicable, each of the parties should retain separate counsel to inform, advise and assist in making the best decisions available for that party’s best interests. Sometimes, parties are reluctant to hire counsel for fear that the involvement of legal counsel will complicate their case or make it more contentious. But it is important to remember that the attorney works for the client — not the other way around — and ultimately all decisions concerning settlement belong to the client.

If you have questions about a divorce or other family law matter, please contact a member of the Wealth Management and Family Law Practice Group at Bingham Greenebaum Doll LLP.

  • Partner

    Mike is a partner in Bingham Greenebaum Doll LLP’s Estate Planning Department. The Estate Planning Department seamlessly coordinates and executes a wide array of legal services that cater to the unique needs of high ...

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