The internet has dramatically increased the public's access to information on the legal issues of divorce, resulting in many more do-it-yourself divorces. Just the other day, I received a call from a woman who had such a DIY divorce agreement, complained that her ex-husband was not paying child support as provided by the agreement, and wanted to know how she could go about enforcing it. She is a highly educated financial analyst from Manhattan. Her ex-husband is also highly educated and is a hedge fund manager.
The two of them decided to "save money" on legal fees and drafted and signed their own divorce agreement, using a form they found on the internet, and without consulting with counsel. The only problem was, they used a Connecticut form for a New York divorce, and the child support provisions in the agreement were invalid! She didn't save any money; rather, she wound up spending thousands of dollars in a complex litigation because of the invalidity of the agreement.
I find it shocking that a couple who is Ivy-educated and earns more than $.75 million a year did not even consult with a matrimonial attorney before attempting such a do-it-yourself approach. DYI divorces are more often "Penny wise, pound foolish." Unfortunately the internet has empowered people to take a DIY approach on financially and legally complex issues that require professionals to ensure a fair and binding settlement. Couples are getting divorced in a vacuum of misinformation and inexperience, and then paying the price to fix their mistakes afterward.
The DIY approach to divorce has many pitfalls, the top five of which are as follows.
1. Failing to understand individual state laws for divorce.
Each state has its own complex divorce laws. Sometimes, you may have a choice of which state to bring your divorce action in, depending on the residency of each spouse. By failing to consider where to bring the divorce action, you may be significantly financially prejudicing yourself in terms of the support you pay or receive, and the assets to which you may be entitled. A divorce attorney can help you compare different state laws and help you decide on the jurisdiction that's best for you.
2. Failing to obtain full financial discovery
You may think that you are aware of all of your spouse's income and assets, but are you really? If your spouse is a highly paid executive or a business owner, there may be other income s/he receives that is not part of his/her base salary or base draw, including perks such as health insurance, life insurance, travel, dining and entertainment expenses (which may be personal in nature), pension contributions, deferred compensation, stock options, bonuses, and the like. If your spouse has a mostly cash business, cash income needs to be traced. Without being fully informed of the full nature and extent of your spouse's income, you may be short-changing yourself and your children.
Have you reviewed your spouse's assets and received proof of not only what the value of those assets are now, but whether and to what extent money was transferred or wastefully dissipated? Do you know the value of your spouse's business, professional practice, or commercial real estate ventures? Did you employ a valuation expert to determine the value? Not all valuation experts are the same, and your attorney will help you find reputable experts.
3. Failing to consider key issues.
You may have negotiated your own settlement, but did you consider the tax impact of asset transfers and support payments? This tax impact can water down the amount you actually receive. What about effective measures to compel compliance with the agreement without going to court? There may also be technical nuances of receiving a portion of a spouse's stock options which must be drafted appropriately. In addition, by law, a spouse may be able to modify certain terms of the agreement. Do you know what may trigger such a modification? A divorce attorney will explain the tax impact of the agreement as well as legal nuances that may not be specifically written in the agreement but may occur by operation of law.
4. Drafting a vague agreement
If the terms of the agreement are vague, they will not be enforceable. I once reviewed a DIY child visitation agreement that provided that the parents were to alternate weekends and holidays with their children, but did not specify the holidays and vacation periods and which parent would have which time period in any given year. The agreement was meaningless and unenforceable. A divorce attorney will help you draft specific and clear language to ensure that the import and meaning of your agreement is understood by a judge.
5. Drafting an invalid agreement
There are many nuances in divorce law, and if you are not aware of what language is required to be in a divorce agreement, you may have an invalid and unenforceable agreement like the couple I mentioned above.
At a bare minimum, any couple getting divorced should invest in a matrimonial attorney to learn their legal rights and obgligations and have their agreement reviewed for fairness and enforceability. At Samuelson Hause, our goal is to provide clients with exceptional advice so that they can effectively and cost-efficiently settle their divorce case. We will explain the nuances of New York divorce law to you, explain what financial discovery is necessary for you to be fully informed about your spouse's income and assets, help you with the discovery process, and draft an iron-clad settlement agreement. Don't be penny wise, pound foolish when it comes to your future and your children's future.