The Dangers of "DIY" Divorce
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Today’s consumers confront many projects they used to leave to the pros. Armed with information from the internet, this “do-it-yourself” approach is often pursued in an attempt to save money and resources. Although do-it-yourself options may be smart for things like home improvement, car maintenance, and even online investing, people should think twice before tackling or finalizing their own divorce; a do-it-yourself divorce can cost more than most people imagine and result in more mistakes and problems than most bargain for.
A divorce judgment must contain certain minimum terms. For example, if there are minor children, a judgment must address: major decision-making (aka “legal custody”), the schedule of contact with the children and the rules associated with that contact (aka “parenting time”), and whether and how the parents should provide financial support related to the children (aka “child support”). Whether or not children are involved, divorce judgments may also address spousal support (aka “alimony”), property distribution (for both assets and debts), tax issues, and name changes.
Intrepid divorce candidates can purchase do-it-yourself forms or kits that provide templates to address the general issues and complete the divorce. Most such kits, however, are geared to the hypothetical “standard divorce”; they do not and cannot take into consideration the specific aspects of each situation (which you may or may not even know are unique.) Furthermore, most forms or kits do not inform parties of their rights under the law or what would be a fair, equitable, standard, or even reasonable outcome given the particular circumstances.
There are only a few situations where the law specifically allows a court to set aside a divorce judgment. These include, but are not limited to:
Indeed, courts are extremely hesitant to set aside divorce “agreements” because they want people to be able to rely on its terms and move on with their lives -- the law favors the finality of judgments. Courts generally will not set aside a divorce judgment if the sole complaint is that “gross inequity” against one side results from its terms.
While some parts of a divorce judgment may qualify for a second look by a court after the judgment is final, other parts end up being “set in stone.” For example, a court almost always has legal authority to review the parenting plan portion of the judgment if it can be shown that doing so is “in the best interest of the child.” Other parts of a divorce, such as legal custody, child support, and spousal support may be reviewed or modified later by a court if certain criteria are met. Property division, including the division of both assets and liabilities, however, can almost never be changed unless there is a basis to set aside the judgment (as discussed above). This usually makes property division almost impossible to modify once the original divorce judgment is final. Doing the divorce yourself and ending up with a bad or unfair result is typically not enough to qualify for a “re-do” of the parts of the divorce judgment related to assets and liabilities.
Finally, even if certain parts of a divorce judgment can be modified in the future, doing so can be even more expensive and time consuming than addressing them thoroughly in the initial divorce action. Consulting an attorney, mediator, or divorce specialist about your specific situation at the front-end of a divorce can be a smart financial move, even though it may cost more than the do-it-yourself form. Knowing your options at the start can help prevent mistakes that have to be redone later. Thoroughly exploring your options with a professional can also reduce the emotional and financial cost of future problems that might have been avoided at the outset. Who wants to continue to redo issues related to their divorce because they did not know their options to begin with? Finally, talking with a divorce professional at the start may alert you to problem areas (such as those with property division) that you may never be able to remedy if they are not addressed in the first place.
To conclude, use extreme caution with a do-it-yourself divorce. What seems like a quick, easy, and inexpensive option may create more problems than you imagine, some of which cannot be redone. It is in both parties’ best interests to have the terms of any proposed divorce reviewed by independent legal counsel before filing the dissolution judgment with the court.
HOW IT WORKS
In today’s society the previous “stigma” associated with divorce is largely gone. From a legal perspective, the goal of most divorces is primarily twofold: 1) to address issues surrounding minor children (if there are any), and 2) to financially disentangle the parties. In pursuing these goals, however, there are many “moving parts” to consider. These logistics need to be addressed by even the most congenial divorcing couples. For example, at the most basic level the terms of the divorce need to be agreed upon and memorialized into a document that is filed with the court. That document is called a divorce “judgment.” Even if both parties agree to be divorced and approve of all the divorce terms, without a judge’s signature on the written divorce judgment, there is no divorce.A divorce judgment must contain certain minimum terms. For example, if there are minor children, a judgment must address: major decision-making (aka “legal custody”), the schedule of contact with the children and the rules associated with that contact (aka “parenting time”), and whether and how the parents should provide financial support related to the children (aka “child support”). Whether or not children are involved, divorce judgments may also address spousal support (aka “alimony”), property distribution (for both assets and debts), tax issues, and name changes.
Intrepid divorce candidates can purchase do-it-yourself forms or kits that provide templates to address the general issues and complete the divorce. Most such kits, however, are geared to the hypothetical “standard divorce”; they do not and cannot take into consideration the specific aspects of each situation (which you may or may not even know are unique.) Furthermore, most forms or kits do not inform parties of their rights under the law or what would be a fair, equitable, standard, or even reasonable outcome given the particular circumstances.
UNEXPECTED DANGERS
While using do-it-yourself forms to tackle a divorce can appear effective in terms of time and cost, at least in the short run, they can hold hidden dangers. For example, once a divorce judgment is signed by a judge, it can be very difficult if not impossible to have certain provisions modified or set aside. Attorneys in our office often meet with people who entered into a divorce agreement on their own, submitted it to the court, and then shortly thereafter question whether that deal actually made sense or was “fair”. An “unfortunate deal” or buyer’s remorse is not grounds to modify or vacate a divorce judgment. The court will not reopen a divorce simply because one party now is unhappy with its terms or believes it is unfair.There are only a few situations where the law specifically allows a court to set aside a divorce judgment. These include, but are not limited to:
- clerical mistakes;
- mutual mistakes between the parties about essential facts;
- newly discovered evidence which could not have been presented in time to ask the court for a new trial; or
- fraud in which a party knowingly made false statements or misrepresentations in the negotiation or formation of the agreement.
Indeed, courts are extremely hesitant to set aside divorce “agreements” because they want people to be able to rely on its terms and move on with their lives -- the law favors the finality of judgments. Courts generally will not set aside a divorce judgment if the sole complaint is that “gross inequity” against one side results from its terms.
While some parts of a divorce judgment may qualify for a second look by a court after the judgment is final, other parts end up being “set in stone.” For example, a court almost always has legal authority to review the parenting plan portion of the judgment if it can be shown that doing so is “in the best interest of the child.” Other parts of a divorce, such as legal custody, child support, and spousal support may be reviewed or modified later by a court if certain criteria are met. Property division, including the division of both assets and liabilities, however, can almost never be changed unless there is a basis to set aside the judgment (as discussed above). This usually makes property division almost impossible to modify once the original divorce judgment is final. Doing the divorce yourself and ending up with a bad or unfair result is typically not enough to qualify for a “re-do” of the parts of the divorce judgment related to assets and liabilities.
Finally, even if certain parts of a divorce judgment can be modified in the future, doing so can be even more expensive and time consuming than addressing them thoroughly in the initial divorce action. Consulting an attorney, mediator, or divorce specialist about your specific situation at the front-end of a divorce can be a smart financial move, even though it may cost more than the do-it-yourself form. Knowing your options at the start can help prevent mistakes that have to be redone later. Thoroughly exploring your options with a professional can also reduce the emotional and financial cost of future problems that might have been avoided at the outset. Who wants to continue to redo issues related to their divorce because they did not know their options to begin with? Finally, talking with a divorce professional at the start may alert you to problem areas (such as those with property division) that you may never be able to remedy if they are not addressed in the first place.
To conclude, use extreme caution with a do-it-yourself divorce. What seems like a quick, easy, and inexpensive option may create more problems than you imagine, some of which cannot be redone. It is in both parties’ best interests to have the terms of any proposed divorce reviewed by independent legal counsel before filing the dissolution judgment with the court.