Friday, August 1, 2014

DIY -- Danger!

For various reasons, more and more people are choosing to handle divorces and other family law issues without using an attorney.  Sometimes it's just to save money.  With so much information available on line, many people decide they can produce their own legal documents.

Sometimes, it works out fine.  That's especially true when the parties have a short marriage or have virtually no assets.

However, when there are children involved, or when there are assets such as retirement accounts, real estate, bank accounts, investments or separate property, you need a lawyer.  If you don't know what separate property is, you need a lawyer.

If you are so inclined, there are different levels of possible lawyer involvement. You can have an expensive or inexpensive lawyer.  You can have full-service representation, someone who prepares documents for your negotiated settlement or just someone to look over the paperwork you created.

Problems:  If you choose to handle legal issues without attorneys, here are some things that can happen.

1.  The right words or wording are not used.  There are words in divorce paperwork that have specific legal meaning and impacts.  A big problem is enforceability.  Without the right wording, a wonderful agreement cannot be enforced.  It's worthless.  The underlying idea and commitments may have been great, but later on, the agreement is unenforceable which matters a lot when the parties stop being cooperative with each other.

2.  Negotiations are less effective if you don't know or understand strategies in negotiating.  That can make all the difference.  If an issue is not approached appropriately for the parties involved (and their egos and their motivations), you may not get an agreement at all.  Negotiating with a soon-to-be-ex spouse can be very difficult even when things aren't too heated.

3.  A dominant party may run over the other side.  In many marriages, one party tends to dominate the other and one party is often much less informed about the finances than the other party is.  An attorney can manage the information gathering and the discussions, which can reduce or eliminate the domination by the other party. 

4.  It may be nearly impossible to undue a preliminary agreement.  A review after a partial agreement has been reached may be meaningless.  Many people want to negotiate with their spouse, reach some agreements and then ask a lawyer if the agreements are good.  That's obviously a way to reduce attorney's fees, but most people tend to be reluctant to give up benefits they bargained for and got.  In other words, a preliminary agreement is often considered a final, binding agreement by one or both parties.  There may be no revisions.

5.  Parties may reach agreements that will cause tax or other problems.  If alimony isn't done right, the IRS may disallow it and impose taxes, penalties and interest on one of the parties.  A homestead exemption may be lost if real estate is mishandled.  There are many potential problems that parties unrepresented by an attorney might miss until it's too late.

6.  "Common Sense" is not a legal procedure.  A common sense solution may not work at all or may not be enforceable at court. Law is complicated and people often get advice and forms from people in other states and the forms and approaches won't work in Texas.

7.  Agreements may not be binding.  If they aren't properly prepared and approved, they will be worthless.  For example, agreements to allow for direct payment of child support, without going through the State Disbursement Unit, usually cause a great deal of trouble for the person paying, who often gets stuck paying twice.

Solution:  It's so much better to get a lawyer's advice and assistance! If you have assets or kids, you should try to protect what's important to you.

1 comment:

Kent Clark said...

The point you made about common sense not being a legal procedure was a very good one. It's so very important to have an experienced attorney assist you with such a delicate matter. Divorce is never easy, nor is it ever fun. It is vital to have as much assistance as possible, especially if there are children involved.