Sometimes, couples want to avoid lawyers when they seek an amicable divorce. They may believe that lawyers are unnecessary because their property division is amicable and “simple.” Or they fear that their spouse will perceive the involvement of a lawyer as adversarial.
But consider this: even in an amicable divorce you must fully understand your legal rights and obligations, including the type and amount of all assets and debts held by you and your spouse. This includes being aware of the non-marital portions of your assets and the financial support that you and your spouse may be entitled to from one another. Obtaining this knowledge generally requires a consultation with a lawyer. Here are two ways an attorney can help you keep your amicable divorce as amicable as possible.
ASSISTING WITH MEDIATION
Couples often choose to use a mediator when trying to keep their divorce as low-cost and stress-free as possible. Mediators can be extremely helpful. A good mediator can help you resolve issues that you and your spouse have been unable to agree on. An experienced divorce mediator—especially one who is also an experienced divorce attorney—can help you identify important issues that you might not have considered. Some will also draft the agreement for you.
Any responsible mediator, including those that are lawyers themselves, will advise you that he or she is not allowed to give you or your spouse legal advice. The mediator will also tell you that each party should have the draft agreement reviewed by independent counsel. This is because, ethically, one attorney (or one law firm) cannot represent or advise both parties in a separation or divorce.
Ideally, you should have a consultation with an attorney before going to a mediator, so that you know what your rights and obligations are, what questions to ask, and how to prepare for settlement discussions. Even if you choose to go straight to a mediator, you should have an independent attorney review the terms of your deal or agreement. Your attorney will advise you whether the settlement is in your interests and accomplishes your goals, and will ensure that the agreement is properly written and contains all necessary provisions.
PREVENTING COSTLY DO-IT-YOURSELF MISTAKES
Some couples attempt a do-it-yourself divorce by using a sample separation agreement form. They do so at great risk. Couples who enter into settlement agreements without consulting lawyers often make mistakes that cost them far more in the long run. First, the couple can fail to fully understand and address their assets and liabilities. Second, form settlement agreements often do not contain specific language required by state law to address certain types of assets, alimony, retirement benefits, survivor benefits or beneficiary designations.
For example, take Bob and Jane who reside in Maryland and plan to divorce. They see their divorce as amicable and simple, and they don’t want to spend money on lawyers. Assume they have no children, are renting their townhouse (so they have no real property to sell) and they agree on the split of their bank accounts and furniture. Each is employed full-time; Bob is employed by the State Department and Jane works for an antique business. Neither party wants alimony. Bob has a pension from his employment with the Foreign Service and Jane has an IRA at the Bank of Rockville. They agree that Bob will keep his pension and Jane will keep her IRA.
To make their agreement binding, they sign a form separation agreement they downloaded from the Internet. The agreement states that each party waives alimony as well as his or her right to any and all of the other’s assets. Neither of them has consulted with an attorney and they both believe the language in the agreement adequately protects their interests.
The parties get divorced, and 15 years later Bob retires. Within a few months, Jane starts to receive a portion of Bob’s pension. This is because their form settlement agreement does not contain an “express waiver” of Bob’s Foreign Service pension, as required under federal law. Bob asks for Jane to agree to sign a document waiving her entitlement to his pension. Jane now understands the value of Bob’s pension and refuses. They each get lawyers and Bob sues Jane. Jane is successful in court—she gets to continue receiving a portion of Bob’s pension. However, as a result of the litigation, Bob and Jane each end up spending tens of thousands of dollars—exponentially more than they would have if they had consulted with attorneys and had obtained a properly written agreement. Five years after the litigation is over, Jane dies. The Bank of Rockville notifies Bob that Jane’s IRA is now his property. This is because Jane never changed the beneficiary on the IRA from Bob to someone else.
By all means pursue an amicable and low-cost divorce if your circumstances make it possible, but don’t confuse an amicable or low-cost with a do-it-yourself agreement. Remember that there are pitfalls which can lead to unintended results and expensive mistakes. Steer clear of generic form agreements and consult an experienced divorce attorney. It is the best way to be sure you are advised of rights, obligations, and assets and liabilities you might not be aware of. Your attorney can ensure that your assets are properly transferred or protected under the law and advise you about which transfers of assets or funds are taxable upon divorce and how to structure your settlement to avoid or minimize taxation. You will also be assured that your agreement is properly worded under relevant law to achieve the intended results.