I have long been convinced that with a few scalpels and clamps I could remove my own appendix in a pinch. But that conviction does not mean that it would be a good idea to attempt nor does it mean I would survive the operation. And so it goes with many of life’s tasks that don’t seem so difficult that we couldn’t do it ourselves. I am frequently asked this about divorce.
“We don’t have much money and we don’t have kids and we’re in agreement on everything. Why not just download the forms from the web. Do it ourselves and save the bundle that the lawyers will charge us?”
With that frequently asked question in mind I thought I would outline under what conditions couples should or should not try it themselves.
The simplest divorce is one in which there has been a short marriage with no significant property accumulated during the marriage, no children and two employed and self sufficient spouses. No children means no parenting or child support issues. Two economically self-sufficient spouses means no alimony issue. And little or no property means no need to detail how the property is to be divided. Under these conditions there is really no need for a written settlement agreement. The couple separates and after the statutory required waiting period files for divorce using forms and directions easily available on the Internet. In some states you don’t even need to go to court; you just do it by mail. In other states a court appearance is required but the court personnel will usually talk you through the pro forma hearing. Feel free to contact me personally for specifics on North Carolina divorce law.
Recognize that there are two parts of a divorce. The first part requires that you agree on the issues of children and custody, financial support and division of property. The settlement agreement is an enforceable contract that permanently resolves all the child related and economic issues. If you need a settlement agreement and you are not very experienced in drafting contracts you probably need a little help from a lawyer, mediator or at least a knowledgeable paralegal. Once you have a drafted settlement agreement it is relatively easy to do your own paper work and get yourselves divorced. But even in a seeming simple divorce there may be issues that if not written down may result in anger and economic loss.
Consider Pam and Tom who have been married two years and have no children. Tom is self-employed as a contractor and Pam is an assistant professor at a local college. At first glance the couple felt they had nothing to negotiate. They had always kept separate bank accounts and just assumed that each would keep everything in his or her name. This is fine, but they have to recognize that they may each have rights and needs that are provided by law.
For example, during the marriage Pam has increased her retirement account by $10,000. Tom is entitled to a share of it. More complicated yet, during the marriage Tom’s business has doubled, he has earned a lot of money and used it to buy a lot of equipment. According to law, Pam is entitled to a share of the increase in value of the business including both hard assets like the bulldozer and the accounts receivable but also the goodwill value that has increased during the marriage. Finally, Tom, who has high blood pressure, needs to stay on Pam’s health insurance plan for the eighteen months their state requires before it will grant a divorce.
If Tom and Pam just assume that each keeps his/her own assets all will be well unless one of them has second thoughts later. After the divorce when Pam finds out that Tom has been dating her best friend she may decide that she acted too hastily in not pursuing Tom’s business assets. In many states she would have no trouble reopening the case because there was never a legal finding with respect to these assets. And when, out of anger, she cancels Tom’s medical insurance without telling him and he has an emergency appendectomy two weeks after the coverage disappears, there is going to be trouble and both may wish they had attended to these issues in a proper document.
What Pam and Tom should have done was to obtain a few hours of professional help to understand their choices. Property distribution law is very complicated. You may have all sorts of claims on each other’s property. But even if you both are clear and adamant that each should keep his /her own assets you need a simple contact in which your waiver of these claims is clearly stated in writing and signed before a notary public. It will also help if the contract states that you are each aware of your claims to the other’s property and that you are knowingly waiving your claims. While you are at it a mutual waiver of alimony will preempt a subsequent claim if one of you gets laid off or a business collapses.
A written separation agreement is necessary if there are any economic issues or any potential economic issues. And if your situation is more complex than Pam and Tom then you certainly need a separation agreement and it is very unlikely that you know enough about divorce to do it yourselves.
This does not mean that you are doomed to the greedy clutches of adversary lawyers eager to make a fight. There are plenty of mediators around who can help you through at minimal cost and there are some decent lawyers who minimize conflict and help you make practical choices. You can obtain the actual divorce yourself but you take a terrible risk when you do it without a professionally assisted separation agreement.
Call me anytime you have any questions about North Carolina divorce law, custody issues, or separation and settlement agreements. You are under no obligation and it would be my pleasure to answer your questions.