The internet has changed the way we live; everyone can now become an “expert” on any topic with a quick web search. While easy (and free) access to information is empowering, it can also be filled with pitfalls. Ask any lawyer what the bane of her existence is and she will likely tell you “Google” (or any other web engine). I spend more time disarming clients of wrong “legal” information that they read on the internet than I would otherwise spend if they had asked me first instead of asking “Alexa”.
In the past year, I have had several clients come to me with agreements that were either self-prepared with templates found on the internet or prepared by the other spouse’s attorney, and signed by the client without the client first obtaining legal advice from an experienced matrimonial attorney. These are agreements are often unenforceable, or so poorly written they are incomprehensible. Sometimes the situation is worse – like when the agreement is well written and enforceable, but terribly unfair to one spouse. Telling a client that her unfair agreement is still binding is always a hard conversation to have.
A properly executed separation or marital settlement agreement is a legally binding contract, and once signed is impossible (with very few limited exceptions) to undo. I will never understand why people are willing to negotiate and sign a legally binding contract without having a full understanding of their legal rights and options. Would those same people perform their own surgical procedure? Probably not.
While it is understandable that people want to save time and money by taking a DIY approach to a divorce or separation, such an approach should never be taken without considering the consequences and costs when mistakes are made. It is vastly more expensive to try to correct problems with a bad agreement than it would have been had the individual hired an experienced attorney to be involved at the outset. One should never negotiate an agreement without (minimally) consulting with an experienced attorney.
However, if you insist on negotiating an agreement yourself, you should keep the following points in mind:
1. Be clear about your goals – these should include property distribution, responsibility for debts, spousal and/or child support, custody, health insurance, medical expenses, child care expenses, educational expenses, etc. You must have full knowledge of what your assets/debts/obligations are; if you do not, then you can’t possibly make an informed decision about these issues.
2. Hope – hope springs eternal, except when contracts are involved! Do not ever sign an agreement that does not spell out exactly what the other person is required to do because you hope she will “do the right thing”. If that person has been dishonest with you, nickeled and dimed you during your relationship, or has otherwise been a bad partner, things are probably not getting better when you are apart.
3. Understand what you are signing – if you do not understand what your agreement says, do not sign it. Even if you think you understand it, have it reviewed by an experienced matrimonial attorney before you sign it. This will save you a lot of time and money (not to mention heartache) in the long run!
January 2019 Leyla Kiosse