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Parents considering divorce must protect themselves and kids

Parents considering divorce must protect themselves and kids

For a variety of reasons, many people choose to represent themselves in a divorce, custody or child support case. The decision of whether to hire an attorney to represent you—or to choose to represent yourself—may be one of the most important decisions one makes regarding their children, family and financial security.

Sometimes, individuals who attempt to represent themselves became overwhelmed or make significant errors in their case. The law states that parties representing themselves are held to the same standard of knowledge as licensed attorneys. Therefore, a mistake or lack of knowledge of the law may have far-reaching consequences.

Before you choose to represent yourself, parents must be aware of the necessary steps to protect yourself—and your children.


Do

Do understand what you sign

Some individuals with a divorce decree believe it means one thing, but as written, it states something entirely differently. When individuals sign an agreement in a divorce, it is binding and they are responsible for having full knowledge of its content. If a provision is not detailed in the written agreement, it is likely not binding. It is crucial for parties to have a full and complete understanding of any document they sign in their divorce.

Do recognize your rights in the family law court system

When individuals choose to represent themselves, they are assumed to have all of the legal knowledge and experience of a licensed attorney. In some circumstances, a spouse may be the victim of physical, emotional or verbal abuse by the other party. When these victims choose to represent themselves, they often face threats of violence, intimidation or undue pressure to agree to terms of a settlement.

Many abuse victims are not aware of the relief available to them through the court system, nor are they aware of the rights they have in the family law court system. They may not be aware of what factors are relevant in a divorce versus what their abuser tells them are relevant. But individuals must understand their rights in the family law court system to ensure they can make well-informed decisions before they agree to settle their case.

Do develop a clear and specific parenting plan

Some parents who attempt to represent themselves use internet parenting plans, which can be found on various websites. While these one-size-fits-all parenting plans may meet the most basic needs of divorcing parents, they are often quite vague and ambiguous. For example, these parenting plans often state: "parenting time is as agreed upon" or "Thanksgiving for the mother and Christmas for the father." However, this leaves open many interpretations of what the exact schedule will be on these holidays.

Additionally, some of these parenting plans contain no mention of extracurricular activities, exactly how summer vacation scheduling will occur or how out-of-state travel will be structured. A very specific parenting plan is vital so that all parties understand their parenting responsibilities.

Do create a thorough and specific separation agreement

The separation agreement is the document that states all of the details of your settlement with your spouse. This document must be detailed to thoroughly protect a party from hidden financial consequences in a divorce. For example, if a separation agreement fails to contain specific language prohibiting a party from trying to discharge an obligation of the divorce agreement in a future bankruptcy proceeding, there is a chance the bankruptcy proceeding could relieve the party from the obligation.

Very specific language also should be used regarding the allocation of the marital residence. If a party must refinance the home to remove the other party’s name, specific language must be used regarding strict deadlines and consequences for failing to comply with court orders.

Do properly prepare for a custody evaluation

When parties cannot agree on the legal or physical custody of their children, their case will likely proceed to a custody evaluation by an expert witness. This expert witness will issue recommendations to the court that can be very persuasive in the court’s final decisions on custody.

The custody evaluation is a vital part of any custody dispute. Parties representing themselves often fail to properly prepare for these interviews, and fail to gather the documents and evidence to support their position.

Parents must clearly understand how to nominate an expert witness who is most qualified and to prepare a case to be in the best possible position to protect their children.


Don't

Do not miss important filing deadlines

There are important deadlines to file pleadings and other documents with the court. A failure to meet these deadlines can have far-reaching consequences, including orders entered against you regarding child support, alimony, custody, awards of assets/debts or attorneys fees. This can lead to the court making decisions without hearing your position on the issue.

Do not overlook the need to properly serve documents

In order to obtain the court orders you want, it is vital that the opposing party be properly served with certain documents. Depending on the issue, this may require service by a process server or it may require service by mail. When a party fails to properly serve the opposing party, it renders your efforts as useless. Proper service is a vital aspect of your case and it is essential that it be done properly.

Do not fail to conduct a business valuation

When one of the parties has any ownership in a business, this may be an asset of the marriage that is subject to division. The value of this asset, or lack of value, has a dramatic impact on the division of assets of the marriage, the division of debt, and what the amount of alimony--if any--might be.

Too often, parties speculate about the value of a business without having the business appraised. This could be a significant mistake to either party if the value of the business differs from what their best guess may be. For example, there are several different methods that can be used to value a business. Choosing the appropriate way to value a business is a decision that should be made by a qualified business valuator.

Additionally, there are many issues of how the debt, tax liability or future profits of a business must be addressed in a divorce. When parties represent themselves, these issues are often overlooked.

Do not forget to request life insurance to guarantee payment of support

If a parent who is paying support passes away, the other parent may be faced with no child support and/or alimony to support themselves. Many people representing themselves fail to realize and fail to request that the payment of child support and/or alimony be guaranteed by the procurement of a life insurance policy with the children or recipient of maintenance be named as the irrevocable beneficiary of the policy. The policy should be insured by an amount to guarantee the payment of support in the event of the passing of the spouse providing the support.

Do not underestimate the importance of protecting property owned prior to marriage

In some states, if an asset was owned prior to the marriage, there is a chance it will not be included in the assets, which are subject to division. However, depending on the circumstances, there is a chance the asset can be included in the assets to be divided. The issue depends on an analysis of how the asset was maintained during the marriage.

Additionally, if the asset increased in value during the marriage, that increase in value can possibly belong to the marriage. Parties who represent themselves often fail to realize the complicated laws on this issue and prematurely surrender their interest in this possible asset.


Summary
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Making the decision to hire an attorney to represent you, as opposed to choosing to represent yourself, may be one of the most important decisions you will ever make. This decision can have an impact on your children, your family and your financial future.

It is important for parties in a family law matter to know that making a mistake or having a lack of knowledge of the law may have far- reaching consequences. Before you choose to represent yourself, consider the common mistakes that people make when attempting to represent themselves in a court of law.


More expert advice about Divorce and Separation Law

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Margaret E. Walker, Esq.Senior Associate Attorney

I have practiced family law in Colorado and Kansas since 1977. My specialties include dissolution of marriage (divorce), collaborative law, conflict coaching for individuals, mediation, modification of child support, parenting time and parental ...

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