By Bill Phelan
Google "do-it-yourself divorce" and you will find many websites and software packages that promise to deliver all the paperwork you need for a cheap and easy do-it-yourself divorce. Before you decide to do it yourself, consider this actual case we handled recently:
A couple decided to divorce amicably after 15 years of marriage. They had no children and separate bank accounts. The husband proposed that he would keep a home he had purchased prior to the marriage and pay the wife a lump sum of $20,000. The wife consulted us before agreeing. We advised her that the agreement did not give her a fair share of the marital assets. We renegotiated the settlement agreement to give her half the value of the home the husband had purchased prior to the marriage, a share of the husband's pension and alimony for ten years.
The goal of divorce is a fair distribution of assets. You don't have to give up your right to a fair share of your marital assets just because you want to separate amicably. Of course, you need to know your rights in order to protect them. That's where a lawyer can help.
Here are some things I have learned from handling divorce cases that you should consider before, and if, you decide to do it yourself.
1. Divorces are always emotional.
Divorces formalize the end of a relationship and are by definition emotional. Even if you want to divorce amicably, it is easy to get caught up in your emotions rather than focusing on the goal of ending the marriage when the relationship is over. A lawyer can bring objectivity and a steady hand to your situation, helping you to focus on ending the marriage, rather than rehashing what went wrong in the relationship.
2. The outcome of a divorce does not depend on proving that your spouse is wrong.
In divorce, people often want to show that they were right and their spouse was wrong. This helps nothing. People reveal themselves during a divorce. You don't need to expose them.
3. Probate judges are quirky.
Chances are, you will have to present your case and/or divorce agreement to a judge. Each judge has their own preferences for how they want information presented. Knowing those preferences can save significant time and effort.
4. "He said, she said" is only for the movies.
When presenting your side of the story in court, you need to follow strictly the rules of evidence. For example, a court may reject an affidavit that does not meet the standards set forth in evidentiary rules. When telling your side of the story, you will waste time if you don't know the rules.
5. It matters how you say it.
Probate judges have deep experience handling divorce and custody cases. They are particularly adept at deciphering a party's motives. For example, if you go to court to complain that a visitation agreement if unfair to you, the judge will perceive your argument to be based on self interest rather than the best interests of the child. And you are not likely to win your argument.
6. Mediation is not free.
Do-it-yourself divorces often use a private mediator to resolve disputes and mediators cost money. An experienced mediator will charge an hourly rate comparable to what you would have paid in legal fees if you hired a lawyer.
7. You can't always get the documents you want.
To distribute assets fairly, you need to know what they are. An attorney can ask a court of law to order parties to divulge financial information. Without a court order, you may not get the documents you want.
8. Lawyers are good at resolving disputes quickly.
While a party to a divorce may know best what they want, lawyers understand what a court is likely to order given a particular circumstance. Therefore lawyers are often more capable of resolving disputes than the parties themselves. In my experience, two lawyers can negotiate a settlement agreement in a divorce case more quickly than if the case were negotiated by the parties or by a mediator.
While some divorces are more contentious that others, there is no such thing as a simple divorce. If you hire a lawyer, your legal fees will be only a small fraction of what a lawyer can help you obtain in a fair financial settlement. A cheap do-it-yourself divorce can be very costly.