People often ask if an attorney is necessary in a divorce or separation. I often wonder if these same people would ask if a doctor is necessary in the operating room when the patient is about to undergo open heart surgery.
There are many services out there that advertise assistance with DIY divorce agreements for a nominal fee. These services often just provide a series of forms to the divorcing couple and then send them on their way. It is up to the couple to decide for themselves what to put down on the forms and to prepare the papers correctly.
The problem with DIY agreements is that couples often have a myriad of issues that need to be resolved and included in an agreement. Some issues are more complex, such as the custody and support of children, spousal support, and the division of retirement accounts; some issues are not, such as who gets to keep the good china. Regardless of the issues, these agreements are complex legal documents with lifelong legal ramifications. If these agreements are prepared wrong, are written vaguely, or do not address all of the issues that need to be resolved, the consequences to the couple (and/or any children) are disastrous.
I want to give you two excellent examples of how having a skilled attorney involved in the preparation of these agreements paid off for the client.
In one case, I represented a client in a divorce and negotiated the terms of a settlement agreement. As my client’s spouse had a propensity for litigation, I knew that any settlement agreement must be written in a way to expressly define what my client’s obligations would be. The agreement that I prepared was signed by the parties. Six months later, the (now) ex-husband of my client brought a proceeding and argued my client had not complied with the agreement. Although my client had fully satisfied all express terms of the agreement, the ex-husband argued that the agreement implied additional obligations on the ex-wife that were not fulfilled. As part of the relief sought, he asked the Court to force the ex-wife to pay his counsel fees. Not only did the Court dismiss the ex-husband’s proceeding entirely, the Court denied his request for counsel fees.
In another case, I prepared a detailed settlement agreement expressly defining what my client’s child support obligation would be and how “income” would be defined and calculated for future adjustments in support. One year later, the ex-wife filed a petition for an upward modification of child support on the basis that the ex-husband earned additional income from the sale of a business interest. After a hearing, the Court denied the Wife’s petition, finding that the agreement expressly excluded this additional income.
In both examples, having a skilled attorney saved the clients thousands of dollars and aggravation associated with subsequent challenges to the agreement.
Just remember that divorce/separation agreements are legally binding contracts. With very few exceptions, there are no “mulligans” if these agreements are not written well (and correctly) the first time around.