A potential client asked a colleague of mine recently, “Why should she hire an attorney and not just “DIY” her divorce. Apparently, the forms available online at the Florida Courts website, coupled with the self-help center in Orange County, caused this person to question whether it was necessary to retain the services of a lawyer in her Florida divorce. This question is one that is being asked more frequently and I understand why. If I had no training in Florida law and minimal funds, I might be tempted to try to do it myself and some people do.
Sometimes it garners a tolerable result but many times after the final judgment is entered the DIY parties call me for help to fix all the items that went wrong and all the issues that were not addressed in their divorce case. In certain circumstances, I can help, however many times there is nothing I can do, because in reality, everyone is entitled (with a few exceptions) to make a bad deal. Furthermore, everyone is entitled to sign a poorly drafted agreement which may be riddled with legal issues and ramifications that an untrained eye would fail to see. Many DIY parties believe the Judge will review the whole Agreement and let them know if anything is amiss and then make the appropriate corrections. While it is true that Judges review Agreements and Parenting Plans the Judge is not your advocate. The Judge will not question why you agreed to certain provisions or question why you accepted certain terms. The Judge has a duty to make sure you entered into the Agreement freely and voluntarily and that you intend to be bound by it. A Judge has no duty to break down the Agreement and advise you on your options and rights. This is the task of an attorney.
Here are a few examples of problems we attorneys encounter with DIY divorces:
- Lack of specificity in the Marital Settlement Agreement. For example, you may agree that your spouse is supposed to pay you a certain amount or give you a certain asset or take a certain action. However, if you don’t provide for particulars such as when, where, and how, and the subsequent repercussions for failing to perform, your agreement is weak. It is challenging to enforce an agreement that has not provided specifics like a timeline and the manner in which a party is supposed to act.
- Agreement to Sign a Quit Claim Deed. Many parties don’t realize that signing a Quit Claim deed on real property does not absolve them of financial liability on the lender Note (this is the promissory note you sign with the bank when you purchase a home). When a person whose name is on the Note signs a Quit Claim deed without a prior action being taken, such as a refinance on the mortgage in the sole name of the spouse who will ultimately own the house, you have given up any interest in the property but are still saddled with the financial responsibility of paying your share of the mortgage.
- Not understanding how to divide a benefit fund or account. Some benefit funds such as the 401(k) or the defined benefit pension are ERISA-protected. In order for these accounts to be divided without certain taxes being assessed, a separate document called a Qualified Domestic Relations Order (“QDRO”) must be filed in the case. Other benefit funds are similar to those that are ERISA-protected but because they are not “qualified” by definition, they require a document similar to a QDRO but one that contains other language required by the plan administrator. Furthermore, other accounts merely require the non-participant spouse to open a separate account for the fund transfer and proof of the settlement agreement and final judgment. If you have not provided for the proper division mechanism in your agreement, ensuring that you receive your fair share then the equitable distribution of the marital assets may not be easy.
These are just a few examples of errors that can have far-reaching effects. Please consider seeking competent and experienced legal advice in your Florida divorce. If you would like more information about a Florida Divorce, I would be honored to assist you. Please contact the law firm of Schwam-Wilcox & Associates.