At Bailey & Galyen, we are often asked by potential clients if they can simply represent themselves in a divorce. The short answer is yes – our legal system is designed to be accessible to all people, regardless of attorney representation. However, the more important question that people should be asking is “SHOULD I represent myself in my divorce?”. That has a much more complicated answer.
The Internet has provided our society with unprecedented access to information. Many people determine that after an internet search, they can competently handle their own divorce proceedings. However, googling my latest medical symptom does not make me a doctor nor does it make me qualified to operate on myself. In many respects, representing yourself in a divorce is similar.
For instance, in general, the property and funds acquired during a marriage form the community estate and that community estate is subject to a fair and equitable division between the parties. While at first this seems like a simple premise, there are many exceptions and nuances in the law that become factors in determining what a fair and equitable division truly is. For instance, property owned prior to a marriage is generally considered separate property and not part of the community estate. But what if the community estate contributed money towards the improvement or upkeep of the separate property? Or what if that separate property asset gained in value during the marriage? How do you establish a value for both of those situations? How do you divide that value between the parties in a fair manner?
Additionally, the division of retirement accounts is another area that is filled with potential pitfalls. The transferring of retirement assets is generally done through a separate order called a Qualified Domestic Relations Order which allows both parties to avoid certain taxes and penalties. These particular orders are very detailed and plan specific. If such orders are done incorrectly, a party risks exposure to unintended penalties and financial problems.
The most alarming problem with “do-it-yourself divorces” is that oftentimes a mistake made in the division of property or retirement accounts cannot be fixed after the divorce decree is entered. One of the most difficult tasks that seasoned family law attorneys face is having to tell someone that his or her divorce decree is incorrect or somehow faulty but there is nothing that can be done about it. Many people assume that the judge or someone in the district clerk’s office will assist them in completing their divorce. However, neither the judge nor anyone employed by the courts can give litigants legal advice.
When considering your options in a divorce, please carefully contemplate your need for legal representation. Divorce is a complicated process and it is important that you invest in yourself and in preserving your post divorce life.