There is a push these days toward people doing their own legal work. Companies like Legal Zoom® advertise that their forms are all people need to handle all sorts of legal work. The Supreme Court of Texas has ordered the promulgation of fill-in-the-blank forms to help people do their own legal work. But there are many dangers in doing one’s own legal work that the forms just don’t address. I have addressed Do It Yourself (DIY) legal work before. See here, here, and here, for examples. This blog addresses three ways people screw up DIY divorce decrees.
1. Failure to divide all the property
In a divorce, the goal is to completely divide the marital estate with the Final Decree of Divorce. Experienced family lawyers will use a combination of general terms and specific terms to carefully make sure each piece of marital property is awarded to one spouse or the other. Generally, the small items a typical couple will own are too small to mention in a divorce decree; no one fights over small kitchen appliances, for example. But I have seen divorce decrees that fail to even mention the marital residence! Likewise, I have seen divorce decrees that fail to divide the retirement accounts.
Risk: Once a Final Decree of Divorce is entered, it is not easy to go back and make changes to the decree to distribute assets. Sometimes, it is not possible at all. Failure to award property can be expensive!
Rule: The Final Decree of Divorce should divide all of the couple’s property including personal property, real estate, and retirement accounts.
2. Failure to properly award the debts
A divorce decree should assign all the debts to the parties in a way that makes sense. For example, if Wife is awarded the house that still has a mortgage on it, the Final Decree should clearly state who is responsible for making mortgage payments, insurance, HOA dues, taxes, etc. Who pays the credit cards? Who pays for the car notes? Who pays the back taxes on the house, if there are any? What about any debts to the IRS for previous years? There are many more opportunities to award debt properly in a divorce decree. Pro tip: It’s best to award a debt to the person who is contractually obligated to the creditor to pay the debt whenever possible.
Risk: Failure to properly award debts in a Final Decree of Divorce could be disastrous to one or both of the spouses’ credit scores and could hold up moving on with a new life after the divorce, i.e. It could be hard to buy a new house if the mortgage from the previous divorce wasn’t dealt with in the decree.
Rule: A final Decree of Divorce should properly assign debts so the parties walk away knowing exactly which debts each is responsible to pay.
3. Failure to secure any contractual provisions
Many times people will make agreements in a decree, but fail to insert any consequences if the other spouse fails to perform. If the decree states that one spouse must pay the other a sum of money or perform some other task, the decree should have provisions for ensuring that the spouse performs. Certainly, there needs to be a date, a deadline, for the spouse to perform the task. It won’t help to have the other spouse owe $100,000 if there is not specific date listed in the decree by which the payment is to be made, and what happens if the spouse fails to pay the $100,000? Similarly, if a spouse is awarded the house provided that the spouse refinances the house to pay the other spouse a sum of money, what happens if the first spouse can’t swing the refi? Then what?
Risk: Unless the terms of a decree are specific as to the obligations of the spouses, it can be difficult or impossible to make a spouse do what the decree says. The courts can’t help if a spouse is supposed to complete a task under the terms of divorce, but there is not specific date by which the task must be completed, and if there is nothing in the decree that says the spouse performs X or else, Y happens, then the spouse will likely never do X.
Rule: A Final Decree should list specific dates for transfer of property and other tasks as well as consequences for failure to perform any ordered tasks.
Youngblood Law, PLLC is a Fort Worth, Texas family law firm focusing on helping working people live the life they WANT to live through divorce and beyond. This essay is intended for educational use only, and is not a replacement for competent legal counsel. If you are facing a family law matter, we recommend obtaining competent legal counsel like Youngblood Law, PLLC. For more information contact us at 817-601-5345, find us on the web at www.youngblood-law.com, or on your mobile device, open your browser and type in lawfw.biz and press Go. Find us on Facebook at www.facebook.com/youngbloodlawPLLC/