The Value of an Attorney During Divorce

Posted by & filed under Child support, Custody, Divorce, General Family Law.

Times are tough.  Many families and individuals have struggled the past few years because home values have dropped and jobs are difficult to come by.  Financial problems add to or are the cause of marital discord.   Not surprisingly, when couples decide to divorce, many find the idea of hiring an attorney distasteful, if for no other reason than that it will be an additional financial cost.  More and more divorcing parties decide to represent themselves during the divorce process.  For some families, this makes good sense.  If the issues are straightforward and you agree on all relevant terms, then you may be able to effectively fill out the paperwork and complete the process on your own.  Minnesota makes all of the necessary forms available online here: http://www.mncourts.gov/selfhelp/?page=342.

Unfortunately, the issues are not always as straightforward as they seem and the agreement is not always as complete as it should be.  We see two common situations in which parties have represented themselves during a divorce — or some portion of it — and have required the services of an attorney after the fact.  One situation is when parties fill out the divorce paperwork on their own, but the Court refuses to sign off on it.  Sometimes the Court tells the parties what is wrong with the paperwork, but it can be confusing to identify the problems and know how to fix them.  Judges often suggest or strongly urge one or both parties to hire an attorney to review and revise the paperwork.  The set-back can be frustrating.

The second common scenario presents an even tougher issue for unrepresented parties.  Not uncommonly, self-represented parties will submit an agreement to the Court and it will be accepted and approved.  If you are not aware of your rights at the time of the divorce, but then later realize that you have gotten an unfair deal, or are stuck in a difficult situation, it can be hard to go back and remedy the situation.  Common pitfalls include issues with real estate, retirement account transfers, custody or parenting time agreements, and child support collection.

The difficult thing about property division issues is that property division is final upon entry of the divorce.  If an attorney is involved with the drafting of the divorce agreement, the attorney can offer advice to protect you against common contingencies.  For example, what if the house doesn’t sell?  Or, what if you or your spouse are unable to refinance?  Who will pay for unforeseen fees associated with a QDRO (the separate document that provides for both spouses to share in a retirement account)?  While hindsight is 20/20, there is often little a party can do to remedy a property-related problem that has popped up after the divorce is final.

With the child-related issues like parenting time and child support, the Court always retains jurisdiction to revisit these issues if need be.  However, the standard for changing the agreement can be quite high.  For example, it may not be enough to realize after-the-fact that the parenting time schedule doesn’t work well for your child(ren).  Unless the other parent agrees with you and you jointly undertake to change the schedule, it may remain “as is” unless you can show that it endangers the child.  When it come to enforcement of child support, it is likely that you will be able to update the Court Order to promote enforcement of it, but it will cost you additional money to do that.  If it were drafted correctly initially, that cost could be avoided.

For these reasons and more, we strongly recommend that anyone thinking about or starting the divorce process hire an attorney.  At a minimum, it makes good sense to hire an attorney to either draft the agreement that you and your spouse have reached or to have the attorney review the paperwork that you and your spouse have filled out together.  As they say “an ounce of prevention is worth a pound of cure.”

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