While it is possible to accomplish a divorce without an attorney, there are certain situations when it is advised to hire an attorney to complete the paperwork for you. Below is a discussion of when a “Do It Yourself Divorce” should be avoided and how to make the best use of an attorney’s help.
Today many couples are trying to save money by cutting corners on attorney’s fees. However, while opting out of professional help could be a viable option in some areas of life, divorce is not one of them. First, there is no cookie-cutter divorce. You may be able to read everything posted online and download all the forms, but no one will be able to answer questions about your specific case but your lawyer. Especially if children or major assets are involved, the risk is just not worth taking.
Additionally, without the representation of a lawyer, you cannot be sure your rights are being fully protected. If your spouse is holding something back or misrepresenting information, that can be harmful to your best interests. Which brings us to our next point; it’s better to be proactive than retroactive. Once you have filed, approved and signed there is little that can be done in the way of changing the settlement.
Finally, the cost of doing it yourself could be higher than if you hired an attorney. It is likely there will be a problem, misunderstanding, or mistake should you take divorce into your own hands. Such a scenario could cost you thousands in court and attorney fees down the road, whereas the costs of representation, especially in an uncontested divorce may not be as high as you think.
Minor Children Are Involved
If you and your spouse have minor children, attempting to do a divorce without an attorney becomes much harder than a case not involving minor children. In the context of an uncontested divorce case, many people think that the issues that children present in a divorce case can be glossed over, but they cannot. For example, even if you do not want child support and you and your spouse have no problems sharing visitation and custody of your children, the court still has it documentation requirements. You will still need to complete a Child Support Worksheet, Child Support Addendum and Parenting Plan. In addition, the Domestic Relations Financial Affidavit must also be included with the filing.
Furthermore, if there are any miscalculations or errors in the paperwork, the court will likely reject the divorce filing of the case and offer no help in correcting the forms. While the court may give the parties time to correct the errors, refile the paperwork, and come back to court to try again to complete the case; if the documents are not ultimately corrected and filed properly, the case will be dismissed. It is very common many people trying to do a divorce with children their self to ultimately have to hire an attorney to redo and refile most or all the paperwork. This necessarily delays a divorce case that could have probably been completed much faster if an attorney has been involved from the beginning.
In the context of a contested divorce case, the problems are magnified. Most people do not have the time or ability to properly handle a contested divorce case with children. this is because of the added specific rules involved in discovery, service of process and the preparing of additional motions and pleadings needed to move the case along. If there are important issues involving the children, such as child support, health insurance, child care, after school care, activities and the living arrangements for the children, it is best that an attorney be consulted with before the case is filed, or responded to. If your spouse has already hired an attorney to help with their divorce case, you should make it a priority to at the minimum consult with an experienced divorce and family law attorney before making any major decisions regarding the case.
Do not make the mistake of asking for or taking legal advice from your spouse’s attorney. For one thing, your spouse’s attorney cannot ethically provide you with legal advice. And secondly, your spouse’s attorney is not ethically obligated to tell you the truth about the divorce proceedings. Finally, accepting what your spouse tells you as “legal advice” is almost always a bad decision, and will frequently lead to bad or less than optimum results for you. Finally, it is a lot easier to have your own attorney working to keep your case on track and helping you to get the best results, than to be hired later to back and try to correct after the court has finalized a case.
Significant Assets Are Involved
If your divorce case involves significant assets, you should hire an experienced attorney it at all possible. There are several major kinds of mistakes people make in a divorce that involves significant assets without an attorney. These include, but are not limited to:
- They make incorrect assumptions about how assets should be divided, and accept too little or go to trial on issues that should have been resolved early in the case.
- They underestimate value assets and accept too little in a divorce settlement.
- They overestimate the value of assets and expect too much in a divorce settlement, only to be disappointed much later when their case goes to trial.
- They give up on trying to determine what all the assets are. This is common when the other spouse handled most of the finances during the marriage.
- They let the other party dispose of, sell and hide assets during the course of the divorce, leaving nothing in the end to divide.
- They give up far too much in assets either due to intimidation, fear or feelings of guilt or just to make peace with the other party. It is not uncommon for a combination of fears and feelings to cause someone to agree to give their spouse far too much in a divorce settlement.
All of these issues can be resolved by using a divorce attorney experienced in cases involving assets. For example, an attorney can assist with discovery on your spouse and the banks, financial institutions and even business associates of your spouse. Also, an attorney can review all the financial records and bring in a financial expert, real estate appraiser and/or accountant if needed to help determine and uncover assets. A divorce attorney can also give advice on the difference between marital property and separate property, and help to determine what might be commingled property and what to do about it.
In addition, if your spouse is concealing, giving away, wasting or disposing of marital assets, an attorney can file a motion for contempt against your spouse and ask the court to freeze the assets, and ask the court to order your spouse to replace or pay compensation for assets wasted, hidden or otherwise done away with.
Significant Debts Are Involved
If your divorce case involves significant debts, you should hire an experienced attorney it at all possible. There are several major kinds of mistakes people make in a divorce that involves significant debts without an attorney. These include, but are not limited to:
- They make incorrect assumptions about how debts should be divided, and accept too much responsibility for debts incurred during (and sometimes before) the marriage or go to trial on issues that should have been resolved early in the case.
- They underestimate the amount of debts and later regret their decisions a divorce settlement.
- While not as common, they may overestimate the amount of debts and make bad decision related to all financial aspects of their case.
- They give up on trying to determine what all the debts are. This is common when the other spouse handled most of the finances during the marriage.
- They let the other party use marital property to pay off pre-marital and non-marital debts during the course of the divorce, leaving no assets to divide.
- They give up far too much in assets either due to intimidation, fear or feelings of guilt or just to make peace with the other party. It is not uncommon for a combination of fears and feelings to cause someone to agree to give their spouse far too much in a divorce settlement.
All of these issues can be resolved by using a divorce attorney experienced in cases involving assets. For example, an attorney can assist with discovery on your spouse and the banks, financial institutions and even business associates of your spouse. Also, an attorney can review all the financial records and bring in a financial expert, real estate appraiser and/or accountant if needed to help determine and uncover assets. A divorce attorney can also give advice on the difference between marital property and separate property, and help to determine what might be commingled property and what to do about it.
Child Support is at Issue
If child support is a factor in your case, you need to have an attorney by your side. Child support is much more a complex issue than most people initially expect. This is because, even though it is relatively easy to determine a base rate amount for child support in Georgia, that should be paid. These factors include, but are not limited to:
- child care
- after school care
- private school
- extracurricular activities
- health insurance
- medical expenses not paid by health insurance
- transportation expenses related to visitation
- parenting time that is more or less than the standard amount of time
- government benefits (such as social security, disability) and their amount
- all sources of income, including retirement income
- other dependent children either party may have responsibility for
- high income
- low income
- life insurance premiums when for the child’s benefit
- child care tax credits
- child dependency exemptions
- special educational expenses: special needs or for private school
- special expenses: which may include medical needs, summer camp, music or art lessons; travel for school sponsored
extracurricular activities such as band, clubs, and athletics. - mortgage payments made for the child’s benefits
Without an attorney, it is not uncommon for a party to end up paying much more child support or receiving much less child support than they should. Some of the factor that cause this is the failure to deviate the child support for the factors listed above, or that it is very difficult to determine the income of the other spouse. This is common in cases where someone is self-employed and will not willingly turn over important information to help determine income. Again, as with assets discussed above, an attorney can get copies of business records and bring in other experts if needed to help determine what your spouse’s actual income is.
Alimony is at Issue
If you feel that you need alimony, it is important to consult with an attorney very early in your divorce case. This is because many people make costly incorrect assumptions about alimony. For example, they may think they are “entitled” to alimony, or that it must be paid. They may also not realize that a party that is proven in court to have committed adultery will not generally receive alimony. Also, a party may think that because they have committed adultery or other acts they feel guilty for that they must pay alimony. In Georgia, the real factors that determine alimony include, but are not limited to:
- each party’s ability to earn income and the amount, separate estate, financial resources, and debts
- each party’s contributions to the marriage. This includes homemaking, child care, education and career advancement for the other spouse
- the standard of living for the parties during the marriage
- each spouse’s age, health and even emotional condition
- the reasonable amount of time necessary for either party to obtain an education or training needed for employment
- how long the parties have been married
It is important to know that there is no formula for calculating a presumptive amount of alimony in Georgia. In addition, the court can decide that alimony is not to be paid using several different factors that the court feels are important in each individual case. In summary, a judge has great discretion in deciding how much alimony to award, for how long to award it, or whether to award any alimony amount at all.
Child Custody is at Issue
If child custody and visitation are at issue in your case, you should consult with an attorney as early as possible in your case. Aside from the fact each party normally wants to see their children as much as possible and play a part in their development, growth and lives, it also affects the amount of support a party pays and the other receives. Georgia courts require a comprehensive parenting plan to be a part of all divorce cases involving children, which should include:
- who is the primary physical custodian
- the legal custodian rights of the parties
- which parent is the final decision maker for: health care decisions, religious upbringing, extracurricular activities and education
- the amount of visitation for the non-custodial parent
- the actual visitation schedule, which should include time for holidays, summer and other vacation times
- the ability to travel out of state with the children
- communication with the children when they are with the other parent, which should include the type of communication allowed (phone, email, etc.) and the times
This is most important with parties that have younger children where so much is at stake and for many years. Without an attorney, many spouses will make bad decisions about visitation and custody due to bad advice from friends and family that includes little planning for when the children get older. It is much easier to hire an attorney to help start implementing a good comprehensive parenting plan early in the case than to try and modify a bad parenting plan later.
In Summary
If your case involves any of the factors discussed above or a combination, see the advice of a knowledgeable divorce and family law attorney early in the divorce process. If you would like to meet with one of our experienced Georgia divorce and family law attorneys, call us at 770-609-1247 to discuss your case.
