People navigating a divorce have to make many important decisions. Who gets the house? Where will the children live? How will we split our retirement accounts? Another important decision people must decide is whether or not they want to hire an attorney. Hiring an attorney, for many people, can be a large expense. People wonder whether hiring an attorney is really necessary, especially when the parties have already come to an agreement. This blog will discuss why you should hire an attorney in instances where you and your spouse have already come to an agreement.
Avoiding Unnecessary Conflict
Sometimes people do not want to involve attorneys because they believe that attorneys will cause unnecessary conflict. To the contrary, most family law attorneys will respect the parties’ decision to make a divorce amicable and uncontested. Family law attorneys enter into uncontested cases not to cause conflict, but to ensure that the parties’ agreement is enforceable and meets all legal requirements.
An attorney will inform their client of the different rights the client has under Texas law, which can sometimes be misunderstood as creating conflict. Attorneys have an ethical duty to inform their client of their rights before the client agrees to something that would waive those rights. For example, the parties might agree that one party in the divorce will be awarded all the money in a brokerage account because that party owned the account prior to marriage. An attorney would ask the client whether the brokerage account has grown during the course of the marriage and inform the client that any such growth would be considered community property under Texas law. Furthermore, the attorney would likely ask the client whether their spouse has continued to contribute to the account during marriage. Since income earned during a marriage is community property, any money the spouse put into the account during the marriage would be community property. At first, what seemed like an easy division, just giving the spouse the brokerage account they owned prior to marriage, can quickly become a more complex financial decision. In this example, the attorney is not attempting to create conflict and “ruin” the deal between the parties but rather wants their client to make an informed financial decision. Ultimately, people might forgo funds during a divorce that they will need in the future to support themselves simply because they do not understand the intricacies of Texas family law.
Mediation: Locking In the Agreement
When parties come to an agreement, it is important that those parties attend what is called a “drive by mediation” in order to make their agreement binding and irrevocable. People change their minds. What you do not want to happen is to come to an agreement with your spouse and have that agreement fall apart. If a party does not hire an attorney, they will likely not attend a mediation and are risking their agreement failing apart because their spouse changes their mind.
In most family law cases, most parties will attend mediation. Typically, mediations are either half day or full day. The goal of mediation is coming to an agreement in lieu of having a court decide one’s case. If the parties already have an agreement, they can do what a drive by mediation.
A drive by mediation is simply a shorter mediation where the attorneys and the parties meet with a mediator to go over their agreement. Parties want to attend mediation so they can get a Mediated Settlement Agreement. A Mediated Settlement Agreement, oftentimes referred to as an MSA, is a document that lays out the agreement in legal terms and cannot be revoked after the parties sign it. Therefore, if your spouse decides the following day that they changed their mind, they cannot change the terms of the agreement after they sign the MSA. A person who decides not to hire a lawyer would likely miss out on crucial steps of the divorce process, such as knowing the importance of getting an MSA.
Navigating the Court System
Navigating the court system can be very difficult for parties who decide to represent themselves, otherwise known as pro se parties. Attorneys spend years learning the law, working in the courts, and building relationships with court officials. Through their experience, attorneys learn how to get cases through the court system from start to finish.
Parties might struggle to navigate the court system, leading to unnecessary stress and delay in their case. Oftentimes, pro se parties appear before a court without completing the necessary steps in their case. Judges cannot move forward when certain legal requirements are not satisfied regardless of the party being pro se or represented by an attorney. It is not uncommon for pro se parties to ask judges how to complete steps in their case, even steps that appear administrative. However, judges cannot provide anyone, including pro se parties, legal advice.
Instead, judges will normally recommend that pro se parties seek legal advice from an attorney. If a pro se party then seeks legal advice, many times the attorney will have to redraft the party’s pleadings because pro se parties oftentimes use forms. Forms provided either online or at the court house are meant to make the legal system more accessible to pro se parties, but they are not the same documents that attorneys file. Therefore, even if you start your uncontested divorce by yourself and then hire an attorney, your attorney will still likely need to draft the pleadings. Pleadings are what lawyers call documents they file with the Court. Oftentimes, it makes more sense to hire an attorney from the outset of a party’s case from a financial, logistical, and emotional perspective to limit the amount of time and stress a party’s spends on a case.
Enforceability
Another reason to hire an attorney even if parties already have an agreement is to ensure the final order in the case is enforceable. In a divorce, the final order is called a Final Decree of Divorce. Attorneys are trained to draft enforceable orders. Pro se parties might come to an agreement and include an agreement in their final order that actually is not enforceable. After working hard on an agreement, a party does not want to have a final order that they cannot have a court enforce if the other party does not abide by the agreement.
Orders can be unenforceable if the language is vague and ambiguous. Attorneys have experience drafting this language in orders so they know the level of specify an order needs for a judge to enforce it years down the line. For example, parties might put “Target off Highway Six” as the place they will do pick-ups and drop-offs with the other party in regards to the child subject to the possession and access schedule in the order. But which Target off Highway Six? There are multiple Targets on Highway Six. An attorney would add the specific address of the Target off Highway Six to be enforceable. Orders must address every detail to be enforceable.
Assistance in Dividing Assets
Parties are oftentimes dividing important assets when going through a divorce. The parties might have an agreement on how to divide the assets, but do not know how to go about actually dividing them. A family law attorney is accustomed to dividing substantial assets, such as homes, retirement accounts, and brokerage accounts.
An Agreed Final Decree of Divorce should state who gets the assets, but the parties also need to actually go about transferring ownership rights in the assets. For example, a party might give the other party a portion of their 401(k) in the Agreed Final Decree of Divorce, but the parties do not execute any necessary documents to transfer ownership rights. To transfer a portion of a 401(k), the parties will need to execute what is called a Qualified Domestic Relations Order (QDRO). Parties will need to decide who will take charge in getting and completing the QDRO in addition to working with the company in charge of the 401(k) to actually get the party’s portion of the 401(k) transferred to them. Typically, the party who will receive the asset is in charge of gathering the necessary documents to transfer the asset, but this process can be taxing and confusing to people who are not accustomed to doing it.
Sometimes years and years pass before a party realizes that they were not actually given an asset even if the Agreed Final Decree of Divorce states that they should be awarded an asset. The party might have to reopen their case in order to divide the asset, which can open up past wounds from previous relationships long after the parties have moved on. If a party is working with an attorney, the attorney will guide them through the process of getting all assets awarded to them in the divorce. Attorneys can assist in drafting the necessary legal documents to transfer ownership.
These are a few reasons why we would recommend contacting an attorney even if you already have an agreement with your spouse. Divorces can be difficult, and you will want to make sure you are receiving the legal advice you need to protect your rights. A family law attorney can help you through this hard time and help you finalize your divorce.