There is a lot of advice out there about how to save money by acting as your own divorce lawyer. Much of it comes from so-called document preparation services whose business it is to gather information, which it then inserts, into official-looking documents such as divorce complaints or separation agreements. The cost of using such services is almost always far lower than the cost of retaining a lawyer to advise and represent you in a divorce. Lower, that is, unless you consider the cost of the errors and omissions that regularly affect the lives individuals who take on the risky task of do-it-yourself lawyering.
I see the effects of this repeatedly in my family law practice. In Connecticut, where I practice, the judicial system has made a concerted effort to become increasingly friendly to pro se litigants. This means that on any given Monday, a court calendar containing one hundred cases is likely to be comprised of at least fifty in which no lawyers are involved and even more where only one party is represented by counsel. On the day of the final hearing, the courts even provide a lawyer working as a pro-se assistant, free of charge, to meet with unrepresented individuals or couples to review the documents they have prepared in an attempt to comply with the rules of practice for processing a divorce. Importantly, he or she does not provide legal advice.
In Connecticut, the documents usually required at the final hearing include sworn financial affidavits by both parties, a divorce data report, an affidavit regarding child custody and, in the event one party is not present, an affidavit proving that the absent party is not in the military service. Usually, there is also some sort of a written agreement setting forth the deal that the divorcing spouses have worked out with one another.
Assuming all the documents have been prepared correctly, and that no required document is missing, the parties are then instructed to appear before a judge for a brief hearing during which they submit their agreement for approval. Usually, the agreement sets out, in varying degrees of specificity, how the parties will divide their assets, share custody and visitation with their children, provide spousal or child support and, perhaps, to provide for eventualities like the death or remarriage of a party or cohabitation by one of them with another adult. In all but the tiniest handful of cases, the judge hearing the case will approve the agreement of the parties after a cursory review and after getting assurances from the parties that the agreement was entered into voluntarily. This is because, in Connecticut and elsewhere, there is a strong public policy in favor of encouraging cooperative resolution of disputes.
After such divorces, the participants frequently walk away feeling that they have successfully navigated the court system and that they have saved, between them, five or six thousand dollars, or even more, in the process.
It is usually not until much later that the problems come to light. In most cases, it is too late to solve them.
It is not uncommon for a divorced woman to visit me for a consultation about financial issues only to learn, for the first time, that she would have been eligible to receive substantial alimony had she asked for it at her final hearing. Sadly, I must explain to her that that, even though she has lost her job while her former husband has been promoted, she may not petition the court for alimony now. This is because, under Connecticut law, a waiver of alimony on the day of the final hearing in a divorce case is permanent and cannot be reversed. Had she requested and received a stream of alimony of even fifty dollars per week and for only three years she would more than have offset the cost of legal representation. Had she understood her rights, and requested even a dollar per year at the time of her divorce, there would be an opportunity to repair the damage, at least going forward.
However in my state, as in most others, zero alimony at the time of the final hearing must remain zero alimony forever. With an order of alimony of even a dollar per year, she would have had the opportunity to modify the amount in the event any substantial change in her financial circumstances or those of her former husband, but without that there was nothing to be done.
Not long ago, a client came to me to complain that his former wife had just sold their house and had not shared the equity in their marital home with him as she had agreed to do, in writing, when they were divorced years earlier. The divorce agreement they had drafted themselves provided that the house would be transferred to her, but that, when and if she chose to sell the house, he would receive twenty percent of the net proceeds of the sale.
The house had now been sold and he had demanded his money, but she refused to pay. He had come to me asking that I enforce the terms of his agreement. He had learned the price for which the house and sold and was glad to see that it was far greater than what they had estimated the value to be at the time of the divorce. The sales price was also well above the mortgage balance at the time of the divorce which, surely, had been paid down even further in the intervening years. It no longer mattered, now, that he had neglected to negotiate a time limit by which he must be paid in the event she chose not to sell. No matter, either, that he had overlooked the common requirement that he be paid his share if she remarried or cohabited. Luckily for him, she had sold the property voluntarily so it was time for him to collect his twenty percent.
After we investigated, it turned out that there was a problem.
It seemed he had failed to secure his share of the property the way a competent divorce lawyer would, that is, by requiring his ex wife to sign a promissory note and mortgage to be recorded on the land records just as a bank lender would do. Without that protection, potential lenders had no way of knowing that my client had an interest in the property. That oversight had paved the way for his ex wife to remove virtually all of the equity in the property by taking a second mortgage just weeks before the house was sold. She had cash in the bank and there were no net proceeds from the sale. Because of the way their agreement was phrased, my client was now entitled to twenty percent of nothing. While we litigated the issue calling foul on his ex-spouse's bad faith tactics, it took some time and was a costly procedure that left him with far less than he would have received if he had known how to protect his interest in the first place.
Another mistake that cannot be corrected by a ten-minute document check is the common failure to use what is known as the discovery process to learn what income and assets are available for division. Instead, couples acting as their own lawyers usually overlook this process entirely and simply rely on each other to list their assets, to value them properly, and report their respective incomes.
The savings realized by representing one's self can instantly be eclipsed when one ex spouse dies and has not been required to name the other as beneficiary on a life insurance policy. Remembering to deal with insurance issues is often essential in order to protect a stream of alimony or child support that the deceased spouse would otherwise have provided or to fund college education for the children.
It is rare that couples have equal bargaining power with one another even in circumstances where there is a good level of trust and civility between them. Another important function a lawyer may serve, therefore, is dispelling the misinformation that may come from the more persuasive or seemingly authoritative spouse.
If money is an issue, as it is with most divorcing couples, there are plenty of ways to minimize legal costs. For example, you can help your lawyer cut back on hours of preparation time, and make him more efficient and effective, by organizing, labeling, and summarizing the records you provide. You can also help cut down on billable hours by taking the time to write concise and informative histories about both the personal and financial aspects of your marriage.
Before you decide to go it alone, however, think carefully about how much your savings might cost you in the long run.