Who likes to pay legal fees? Raise your hands, please. No one? Well, we family lawyers get it. We usually are hired when there’s a crisis. And we often hear “well, there are ‘do it yourself’ websites out there where I can do my own divorce or draft my own will.” It is cheaper, right? Or is it? If you have literally no assets and no kids, a do it yourself divorce might make sense. However, the stories below really happened. The names and identifying information have been changed.
- Sean. Sean was a U.S. permanent resident and citizen of Ireland, working for a local tech company. He and his wife had been married seven years and were divorcing. No kids. He wanted to keep things inexpensive and amicable. His wife hired her own lawyer and then told him that in Texas their property – all of it – would be divided 50/50 by a judge. At first Sean was inclined to accept this but decided on advice of friends to get a consult. As it turned out, approximately 70 percent of what the couple had was Sean’s separate property, consisting of a substantial 401k rollover acquired before marriage and an inheritance from his grandmother. Hiring a lawyer literally saved Sean hundreds of thousands of dollars in the end.
- Leia. Leia retained an attorney in her divorce but thought she could save money by negotiating an agreement with her soon to be ex-husband without notifying her attorney. The agreement was very unfavorable to Leia, because the agreement had terms hidden in the comments section of the property spreadsheet prepared by her husband’s attorney. Even though the agreement was not legally binding until signed by the attorneys, Leia ultimately realized her mistake and had to backtrack on the deal, which caused the settlement negotiations to run off the rails, increasing legal fees considerably over what would otherwise have been the cost if she had obtained advice from her attorney before settling.
- Marty. Marty and his wife Susanne wanted an amicable divorce and thought they could save legal fees by not hiring a lawyer and going to an attorney-mediator. The mediator told them she could help them work out their differences without lawyers, though she did advise them to consult an attorney to review any binding documents. Neither spouse sought nor obtained independent legal advice, spending multiple days with the mediator at a cost of over $6,000.00. The mediator drafted the decree of divorce (thereby raising the ethical issue of who was the client), which provided that the parties would have a 50/50 equal custody arrangement of their 18-month-old son, exchanging him every 24 hours until the boy turned 18. Thankfully, Marty decided to get a second opinion. The parties ended up with a much better arrangement drafted by Marty’s lawyer, but the funds spent on the mediator were essentially wasted and spent on an unusable document.
- Astrid. Like Marty and Susanne, Astrid and her husband, Jon, wanted an amicable divorce and went to an attorney mediator without retaining their own counsel. Because the mediator was a neutral, he did not advise the parties of their rights but wrote up an agreement to divide their property (they had no children) where each party kept the assets in that party’s name. The parties did not exchange sworn inventories before mediating. This mediator did not draft decrees, so the parties agreed Jon would hire a lawyer to draft the decree. Jon’s lawyer therefore interpreted the mediated settlement agreement to use “catch-all” phrasing in the decree, which benefited Jon, his client. Approximately a year later, Astrid’s father suggested she have an attorney review the settlement agreement, which she did, because she realized Jon had a 401k worth several hundred thousand dollars (which was all community property), and hers had very little value. Her attorney had to advise her that she was out of luck, and because she had not hired an attorney before mediation and gotten information on the respective values of the 401k plans prior to settling, the divorce had become final and unappealable 30 days after the decree was signed. Astrid probably signed well over a hundred thousand dollars to Jon that could have been divided under Texas community property laws.