When Not to "Do It Yourself"

You may have friends who did their own divorce. You figure, if they could do it, so can you. 

Or you may think you don't have much, so why hire an attorney?

Maybe you don't like attorneys.

Maybe you don't have a lot of money to spend on attorneys.

Or you have researched online and discovered forms. You're pretty sure you can do your own paperwork and handle your own divorce for next-to-nothing.

Maybe, maybe not. While I am a divorce attorney and probably have a bias, I can tell you I discourage a number of possible clients from hiring me. I always want to be sure that the parties have tried (with professional help) to work things out. I also don't want someone to hire me if it will cause a financial strain.

Should you hire an attorney? I would say yes, if any of the following are true in your case.

1.  There is a disagreement on how to share time with the kids.  Or, where they should live or go to school.  This issue takes people to the courthouse.

2.  There are retirement assets to divide. It can be very complicated and someone may lose out on a lot of future income when they really need it. Plus, some people may not even realize what they are entitled to.

3.  If there is a house and you have to figure out how to handle some house issues:

a.  Who gets it?
b.  How much should each party get from the house?
c.  Can you get 1 name off the deed and mortgage?
d.  Does the house need to be sold?
e.  How to pay off the party leaving the house.

4.  If someone wants or needs alimony.  How much can they get and for how long? Can a spouse avoid having to pay alimony?

5.  You can't agree on the amount of child support to be paid or the non-custodial parent wants to pay no child support.

6.  You can't agree on how to divide the debt.  

7.  One party fears for his or her safety. 

If any of these issues exist in your divorce situation, you should not try to get your divorce without the help of an experienced Family Law attorney.  These are not simple issues and they can have a major impact on the rest of your life.

Why Cases Aren't as Simple as You May Think

Some people get caught up in the "Do it Yourself" movement and decide to represent themselves in a divorce.  After all, how hard can it be? They're thinking:  Texas is a 50-50 property state, so you divide everything equally.  Then you use standard visitation and child support guidelines. You just write down what you want and the Judge will straighten out any problems and then grant the divorce.

Now, back to reality. Life is complicated.  The more assets you have, the more important it is to use a lawyer for a divorce.  If there are children, there are many important issues other than child support and visitation.  Judges don't fix your mistakes.

Here are some issues you may need to consider.

1.  There are parental rights, powers and duties that have to be allocated between the parents.  Some can be shared, some might work with consultation between the parents, some might need a tie-breaker if the parties can't agree, and others are usually controlled by just one parent. These can decide the outcomes of some very important issues.  You need knowledgeable guidance on them.

2.  There are many different variations in the possession (visitation) schedules for the kids.  You have to come up with something that both parents accept and use language that is specific enough to be enforceable in case of future conflict.

3.  Child support can have some issues as well.  Is is really necessary?  Should you use the guidelines or try something else?  Will the Judge approve something else?  How to you calculate it?  You also have to use correct and specific language in creating the order.

4.  What do we need to divide?  What is separate property (which the Court can't divide) and what's community?   Are there any tax consequences? Can all assets be divided?  If not, what do you do?

5.  How do you handle health insurance?  Can one spouse provide it for an ex-spouse?  If so, how?  How do you set up the health insurance for the kids?  Who pays what?

6.  Can we divide retirement accounts?  If so, how?

7.  What do we do with the house?  One party keeps the house -- how do you get the other spouse's name off the mortgage?  Can you refinance the house?  Do you want to sell it now?  If so, you need detailed plans for that.  What do you do with the proceeds?  What if you can't sell it?  What if your ex-spouse won't sell it?  There's a lot at stake with the house.

These are only some of the issues you may face in a Do-it-Yourself Divorce.  If you have children,  more than a little property or a marriage longer than a year or two, you definitely need a lawyer to help make sure you don't make a mess of your financial and family futures.

Tuesday Tips: Don't Try to Do-It-Yourself Without Your Own Attorney!

In these days with a contagious "do-it-yourself" attitude about so many things, many people have taken that approach to getting divorced.  That may be a mistake, unless it is a very short marriage, with little or no assets, and no kids.

Part of the motivation is to save money.  That's understandable, but keep in mind that you don't have to hire a high-priced lawyer to get good representation.  For smaller estates and parent-child issues, and even for more complicated estates,  younger, less-expensive attorneys can be fully capable of providing quality representation for you.  Just because an attorney charges a higher fee, that doesn't guarantee quality and doesn't mean that attorney is a good match for you.

So you can hire a good attorney and not break the bank. Should you hire an attorney or just go all out to save the money and do it yourself?

If any of these conditions exist, you should probably have an attorney assist you in resolving your divorce:

• You have children with the spouse.
• You or your spouse have retirement assets.
• You have investments.
• You have a house, with positive equity or negative equity.
• You have significant debts.
• You have been married for at least several years.

There are many different ways to handle those issues and you may not even realize the significance of some matters.  There are lots of rules in Family Law. It may not be easy to translate your ideas into legally-acceptable court orders.  If orders aren't drawn properly, they may not be enforceable.  You may lose all rights to some things if you don't deal with them correctly.

Don't assume that common sense applies to the law.

At the very least, you  should have a consultation with an attorney (or several) to check out your options and what their consequences are.  It may save you money in the long run.

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.

What NBC 5 D/FW Didn't Show about Do-It-Yourself Divorces

Last week, a reporter on the local North Texas NBC Channel 5 TV station had a glowing story about do-it-yourself divorces.  The reporter talked to a lot of people and showed how and where people can get forms to do an "uncontested divorce".

Disclaimer:  I don't do low cost divorces, so the story doesn't directly affect me.  It will not take away any business.  I work primarily on cases where the parties don't agree on some major issues, but still want to have a civilized or "friendly" divorce.  I do many Collaborative divorces where people need to come to agreements and don't want to engage in ugly litigation.

The main way the TV story could affect me is having to repair damage people will do to themselves in  doing their own divorce, and in some cases I will have to explain to the client  that the damage can't be repaired.  I would prefer for people to get it done right the first time.

Here are the problems with the report:

1.  Do-it-yourself really only works well if there are literally  no kids, no assets and a very short marriage.  The Texas Supreme Court created a form for a very limited purpose, but people are already misusing it. Many people try to use the forms even though they have assets and issues that aren't intended to be covered by the forms. The form doesn't define or explain some terms and that creates confusion for the users.  Some people end up guessing and making wrong assumptions.  Sometimes problems can be fixed, but sometimes they can't be.  If you discover a problem, contact an attorney right away.  Timing is important.

2.  If there are kids, you need very clear and specific language on the powers, rights and duties of each parent, and on visitation, child support and insurance.  You also have to make sure all the proper children are covered.  With blended families and children born out of wedlock, it becomes a little complicated.  If the proper language isn't used, the orders won't be enforceable.  People will become very frustrated and angry.  Then the Texas Attorney General or a private attorney will have to come in and correct order.  Visitation or child support that was missed because of an improperly drawn order may not be able to be recovered.

3.  If there are assets, you must identify all of it and divide it properly.  That includes retirement benefits of many kinds, employment benefits, QDROs, real estate ownership and documents, investments, bank accounts, debts, tax issues and separate property, among other things.  Many people don't understand what some of those things are and they may miss out on dividing them.  Some property may be hidden by the other side and included in the divorce.  Once a divorce decree is final, you may not be able to change or undo it, so you have to get it right the first time.

4.  Uncontested divorces are really rare.  Uncontested means that everything has been agreed upon. We get calls all the time from people wanting to do an uncontested divorce.  After asking just a few questions, it becomes clear that both parties have agreed to get a divorce, but don't agree on much else.  There's always at least one or two difficult issues remaining.  That requires negotiation or litigation.

5.  The results of do-it-yourself divorces:  people have to spend money getting repairs.  Many times, judges look over the paperwork and refuse to sign an obviously improperly drawn Decree.  That wastes time in court, not to mention the wasted time off from work by the person trying to get the divorce granted.  There is no public agency that will prepare or correct or supervise the production of divorce papers for do-it-yourself filers.  If you try to prepare your own, you will probably end up hiring an attorney to fix your work.

Solutions:  Contact Legal Aid of North West Texas for help.  Depending on your circumstances, they may take the case for you or they may refer you to an attorney who can help.  There are also some legal clinics occasionally that have special events to help people who want to handle their own divorces.  Also, if you want to find low-cost attorneys, consider hiring a young attorney just out of law school.  Those attorneys can do a good job for you and won't charge as much as more experienced attorneys.  Do some research on line and check with friends or other attorneys for recommendations.

Not Solutions:   Don't waste your time calling around and asking attorneys to answer questions on the phone for free.  Likewise, don't expect to get a free consultation with an attorney to find out how to do things.  Attorneys have to make a living, just as everyone else does.  They cannot give away their time and expertise to everyone who calls.  Most attorneys do some pro bono (free) work, but only under limited circumstances.  For example, I accept referrals for pro bono cases only from 2 or 3 agencies.  I don't do it for people contacting me directly.  Looking for something free will be frustrating and a time waster for you.  Instead, follow the suggestions in "Solutions" above.