It may be tempting to save money in a divorce by drafting a decree with your spouse, or by completing a form decree. This is especially true if it appears that you and your spouse are in accord on all issues. But be warned: unintended consequences can arise months or years after your decree has been filed and entered by the Court.
Once your decree has been filed by the Court and entered by Court Administration, your decree becomes the legal guide for everything related to your divorce: custody and parenting time, support, property and debt division. On the surface, these issues can seem simple and many couples attempt drafting their own dissolution paperwork without counsel in an effort to save on the investment of lawyers and other professionals. While it is true that parties are often in the best position to make decisions about what their families need, attorneys are uniquely trained (and perhaps some are even naturally suited) to imagining something their clients may not be inclined to consider: the worst-case scenario.
The worst-case scenario is and should be an ever-present consideration for attorneys as they counsel their clients regarding important decisions that will have long-term impacts on parenting and financial issues. An attorney may be a glass-is-half-full type of person, but he or she has been trained to imagine what could go wrong five years out from a divorce or custody determination. The worst-case scenario may not be an enjoyable rumination, but it is critically important in drafting strong contracts.
Take Couple A, for example. Couple A was married for 12 years. They have an eight-year-old child and they own a home, which they purchased together during the marriage. Couple A decide to divorce in November and to sell the home in the spring when the housing market is stronger. They agree to share the closing costs and to equally divide the sale proceeds. They also decide that they will have equal parenting time, but they do not create a specific parenting time schedule. Couple A feels pretty good about the progress they are making, and they should feel great – many couples are not able to have fruitful conversations about parenting and property issues in the context of a separation. Couple A signs and files their divorce decree, which awards the home to Wife, pending the sale of the house. Husband has purchased a townhome a few miles away. Couple A is glad to have the divorce behind them so they can focus on their child and on moving forward with life.
What could go wrong?
Let’s check back in with Couple A one year after their decree is entered. It is late fall and the marital home is still unsold. At the time the divorce was finalized, the realtor recommended repairs that required time and money and the parties were not able to agree on a listing price. Some offers were made, but the parties felt that the property should sell for more. Wife has been paying the mortgage for the past year, and the parties have now just received a solid offer. Wife wants to be credited for reducing the mortgage principal during the year she made mortgage payments and is asking for additional sale proceeds. Husband does not agree – he has done some of the repair work on the home and has paid for lawn maintenance. The decree is silent on principal reduction, and he believes the net equity should be divided equally, as worded in the decree.
In addition, Wife has put in an offer on a home twenty miles away from Husband’s new home. Wife wants the now 9-year-old to attend school near her new home, in a different school district. Even though the parties agreed on equal parenting time, Husband has been picking up overtime at work to help offset some of his expenses, so Wife has had significantly more overnight parenting time over the course of the last year. Wife has hired a lawyer and is threatening to take Husband to court to address school choice, parenting time, and the division of equity from the sale of the marital home.
If Couple A had attorneys, even to simply review their draft decree, they could have included some provisions to address these foreseeable events. As a family law attorney, I have encountered many “Couple As,” who, with the best intentions, endeavored to divorce without counsel because they believed it would save them time and money. However, in many instances, these couples overlook important details and pitfalls that a family law attorney will mitigate by including provisions that anticipate change and communication breakdowns. In the end, these couples have unnecessarily spent significant amounts of money to resolve issues that could have been avoided by addressing them properly at the time of divorce.
If Couple A had engaged in the Collaborative Divorce process and retained collaborative attorneys committed to working only out of court, they would have had conversations focused on problem solving the issues that they later encountered up front. While many divorcing couples can and should make efforts to reach agreements on their own, attorneys offer unique perspective and experience when counseling clients on important agreements. If you are considering a divorce or have questions about whether the Collaborative Divorce process is right for you (there are many wonderful blog posts on the CLI site explaining why it probably is), contact CLI or browse through the online listing of collaborative attorneys (Find a professional) – most of us offer free initial consultations and love the collaborative work we do.
About the Author:
Rebecca Randen is a family law practitioner and partner at the firm Randen, Chakirov & Grotkin LLC. She practices collaborative and traditional family law in the metro and greater Minnesota. She is a lifelong Beatles fan.