People love saving money with do-it-yourself projects. There are whole TV channels devoted to DIY home renovations, for example. There is also a push these days toward people doing their own legal work. Companies like Legal Zoom® advertise that their forms just what people need to handle all sorts of legal work. The Supreme Court of Texas has promulgated 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. What are three big DIY risks in divorces?
1. Failure to divide all the property
Ideally, a solid divorce completely divides the marital estate with the Final Decree of Divorce. Experienced family lawyers use a combination of general and specific provisions in a decree 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. Generally, no one fights over small kitchen appliances, for example. The cost of litigating small items doesn’t make sense. Better to buy a new appliance than to pay a lawyer more to fight over a used appliance.
But we have seen do-it-yourself divorce decrees that fail to even mention the marital residence! Likewise, we have seen divorce decrees that fail to divide the retirement accounts. We have also seen DIY decrees that award the marital residence to both spouses. We have seen DIY decrees that awards property the spouses don’t even own.
Rule: The Final Decree of Divorce should divide all of the couple’s property including personal property, real estate, and retirement accounts. The decree must actually align with the property in question and must award it to the proper party. A competent lawyer will make sure the decree distributes all property properly.
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? What about paying 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.
We have seen do-it-yourself decrees that fail to even mention debt. More often, the debt in DIY decrees gets awarded improperly. For example, we routinely see credit card debts awarded to a spouse even though the spouse has no contract with the creditor. Of course, many divorces distribute debt as a way to divide the estate fairly. However, many DIYers fail to account for situations when the other spouse stops paying the credit cards his or her name isn’t on. When mastercard or visa seeks payment, they come for the person who signed the credit application. Does the DIY decree account for that?
Rule: A final Decree of Divorce should properly assign debts, so the parties walk away knowing exactly which debts each is responsible to pay. Ideally the debt will be assigned to the party who is contractually obligated to pay the debt with the creditor. DIY forms don’t include this analysis, but a competent lawyer will.
3. Failure to secure any contractual provisions
Many people make agreements in do-it-yourself decrees but fail to insert consequences if the other spouse fails to perform. For example, any decree requiring one spouse to pay a sum of money must also ensure the spouse performs. 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?
We have seen many, many DIY decrees that completely fail to secure the various agreements of the parties. It’s one thing to require a spouse to perform a task or pay a sum as part of a divorce. It’s something else to be able to hold that spouse accountable for performing. Do-it-Yourself forms don’t bother to require terms of performance that are enforceable in court. A competent family lawyer finds a way to secure the terms in a decree in ways a DIY decree could never match.
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. The courts require specifics in the decree when holding a spouse accountable for performing under the decree.
There is a place for Do-It-Yourself projects. Family law is not such a place. Many mistakes in DIY divorces cannot be undone. Failures to properly award property can mean the loss of assets worth far more than the cost of hiring a competent lawyer to do the work to start with. Relatedly, awarding property without ensuring compliance is a common DIY mistake.
Youngblood Law, PLLC is a Fort Worth, Texas law firm dedicated to family law. We help good people who are trapped in bad relationships find the freedom to pursue their new happily ever after. We also proudly offer the collaborative divorce process for our clients. 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.