Can You Negotiate Your Own Divorce?

The short answer is yes, but. There's always a but. On your own, you may make mistakes on some important issues.  To try to negotiate your own divorce without professional help, you should have only a very limited and simple estate, and probably no kids. 

Depending on your situation, you may want to try the Collaborative divorce process as an alternative to make sure your divorce is handled right and the result is keyed to meeting your needs.

 Here are some questions to ask yourself if you are considering a DIY divorce.

1.  Do you have the information you need?  That would be complete and current records on the finances and information about what to expect regarding your kids.  You may also want some past records on financial accounts if you have concerns about what happened in the past.

    Do you have some assurance that you have the complete and correct information?  Is something being withheld?  Do you have just partial information? Are you relying on what your spouse tells you?  Do you know what you don't know about?

2.  Do you have adequate time, without pressure, to negotiate?  Often, one party gets in a big hurry to finish.  That's often the party who controls the information.  An impatient spouse can make negotiating very uncomfortable if you are doing it on your own.

3.  Do you understand the law and the issues you are dealing with?  Many of the issues are quite complicated and subtle distinctions must by made.  Omissions or wrong decisions can be very expensive.

4.  Are there any issues that your spouse refuses to negotiate?  That can happen if one spouse believes he or she is right or that they might be treated unfairly, from their point of view. Without professionals intervening, one spouse may say that some things on non-negotiable.

5.  Do you feel equal power in the negotiating with you spouse?  If not, you may be in for a rough time.  Sometimes the weaker spouse just caves in to get it over with, and they lose out on things they should have gotten.

6.  Do you think negotiating will be simple?  It usually isn't.

7.  What should you do about the house? Sell it?  Jointly own it post-divorce?  Let one party keep it?  How will the mortgage be paid in the future?  This can be both an emotional issue and a financially draining situation.

8.  Is alimony an issue?  That's often a hot-button issue and often both parties are misinformed about the law on alimony.

9.  Do you know what to do about health insurance? Everybody needs a policy now. Both parties often start out on a single policy during a marriage. When the divorce is final, one party has to get off the old policy and then get coverage somewhere.  Plus, provision to cover the children is necessary?  How are those policies paid for?  There are lots of decisions to be made.

10.  Do you know what to do about Social Security and retirement assets?  These are very complicated and involve what might be the biggest assets.  Mistakes can have serious consequences later in life.

Bottom Line:  Unless you have an unusually small and uncontroversial estate, you should hire an attorney to help you negotiate your divorce.  Keep in mind that Collaborative Law provides a safe process and lots of professional support when you need it.  When you are deciding how to proceed, be sure to at least consult with a trained Collaborative lawyer to see if that process would benefit you.  Good luck!

Do You Really Need a Lawyer?

I recently read a divorce article  on line that I really disagreed with. The premise was that smart people didn't need to hire a lawyer to get a divorce.

The author was probably basing her ideas on how divorce works in California.  It may work there, but I still see lots of problems with DIY.  Even in California with their regimented divorce process, there are still many cases where Collaborative Law can be very beneficial.  Here in Texas, there are even more reasons to hire a lawyer and use Collaborative Law.

1.  Texas divorce forms alone are not sufficient in complicated cases.  Where there are children, you want to have enforceable and appropriate orders for access, support and decision-making.   Just taking a chance with on line forms is not a good idea.  If your order isn't drawn correctly, it's worthless at best and potentially harmful to your interests.

2.  It is very common for a party negotiating without an attorney, to get bullied or bluffed into making a very bad agreement.  It could be paying too much or receiving too little support or not getting proper value for some assets or giving up rights unnecessarily.

3.  Incorrect assumptions are often made, to the serious detriment of one of the parties.  In Texas, for example, there's no automatic 50-50 division of assets or liabilities.   Also, retirement assets may be community property which generally should be divided, but they may include some separate property that was earned prior to marriage.  Plus, how do you deal with a house that's just in one party's name?  You need lawyers to help with these issues.

4.  Few couples can work through these problems just on  their own or with a therapist or financial professional.  Mediators can help some, but mediators can't give legal advice.  No matter how smart a person is, a lawyer is important when there are hundreds of thousands or millions of dollars at risk. Most people benefit from the team of professionals used in Texas:  two attorneys, one neutral mental health professional and one neutral financial professional.

5.  You can't rely on a Judge to correct any mistakes you make in negotiating an agreement.  Judges can't give legal advice and they generally won't point out your mistakes unless something is clearly illegal.

Best bet:  talk to a Collaborative lawyer before you start. Discus the different process options  for working out the terms of your divorce. You may decide to do it yourself, but you also find out that you need help.  It's better to discover that at the beginning rather than post-divorce when you are having problems.

Choosing Between Collaborative Law and Do-It-Yourself Forms

There has been a lot of interest in people doing divorces by using do-it-yourself forms.  It's obviously a way to save a lot of money.  It can also be a fast way to get a case completed, if everything goes well.

The DIY approach doesn't work well if the divorce is hotly contested.  In that case, at least one party will hire an attorney and that means that the other party needs to hire one.

There is a pretty big middle ground existing between the "everything is agreed" cases and the "many things are contested" cases.  For those cases, people can choose between  DIY or using lawyers.  For this post, I won't go into a discussion of Collaborative versus litigation.  Admittedly, I am biased in favor of Collaborative Law, but I will try to be fairly objective comparing Collaborative to using do-it-yourself forms.

1.  Using Collaborative Law will cost a lot more than DIY.  Naturally, using two lawyers and the other professionals will be expense that wouldn't occur if you just do your own forms.

2.  The forms may be good if the facts are simple and limited and the terms are agreed.  The Texas Supreme Court's forms are already being misused for cases that aren't meant to be covered.  The forms don't deal with many issues that are common in divorces.  In the right case, however, they could be a great fit.

3.  There are many circumstances in which forms will likely be a problem.  Here are some of them:

• If you want customized visitation;
• If you want non-standard child support;
• If there's separate property;
• If there are complex property issues, such as
• a family business,
• a professional practice,
• retirement accounts,
• stock options, 
• reimbursement issues, or
• deferred compensation, among  other things;

• If there are tax issues;
• If alimony is requested or needed;
• If there's real estate; or 
• If you want to make creative use of various kinds of insurance, among other things.

4.   Other documents may be needed.  If there's real estate, you may need a deed, deed of trust or a lien note.  There may need to be car title changes.  A qualified domestic relations order (QDRO) may be needed to divide up a retirement account.  There could be other documents needed as well.  They usually don't come with divorce forms.

5.  Using forms, you don't get legal guidance through the process.  You miss out on strategy, creative solutions to problems and tax considerations.  You are just on your own.

If you look at the comments above, you can see that they don't really have much effect on really simple cases.  If that's what you have, then maybe forms can work for you.  On the other hand, you may be missing something and may create major, expensive problems by using DIY forms.  If you have any doubts about whether the forms will work for you, have a consultation with a Collaborative attorney to find out if the Collaborative model would benefit you or if you might succeed on your own with forms.