One result of the sluggish economy has been a rise in the number of pro se divorces, which are divorces in which at least one of the parties is not represented by an attorney. Statistics are scarce, but according to a 2009 study by the Texas Access to Justice Commission, 60 percent of judges nationwide reported an increase in pro se litigants in their courtrooms.
The main reason people attempt to obtain a divorce on their own, without legal representation, is to save money. An ever-increasing number of websites offer forms that facilitate do-it-yourself (DIY) divorces.
People who represent themselves often make crucial mistakes in dividing their assets and debts. Making just one seemingly minor error on the online forms—or using forms that are inaccurate —can result in a negative outcome that may be irreversible or may require costly litigation in court to correct. And some of the forms that are available online don’t address the division of property adequately. Also, some people who pursue a DIY divorce end up experiencing long delays. Because many family courts are undergoing budget cuts, they are becoming clogged with pro se divorces.
It is always best to use a qualified family law attorney, even for a simple divorce. Family law attorneys are trained to handle every aspect of a divorce and can keep clients from making mistakes that will be costly, both financially and emotionally. But for those who insist on doing it themselves, it is important to be aware of the following three common mistakes people make in DIY divorces:
- Using forms that are not court-approved. Many of the forms available online use a one-size-fits-all approach to divorce that doesn’t take into consideration the differences in divorce law among states. What consumers should do is download pro se divorce forms from the website of the court system in their home state. For example, consumers in Tennessee can download court-approved divorce forms from the Tennessee Courts System’s website. Some states even offer an online e-file service that is available for the public and attorneys to use in filing divorces, changing names, and submitting other civil documents. An About.com website provides an overview of the divorce laws in every state.
- Having one spouse take responsibility for debts that are in the other spouse’s name. Typically in a divorce, the objective is to try to divide assets and debts equally. The ideal scenario is to divide debt according to the assets that are in each party’s own name. That simplifies the process, but often it isn’t possible because all of the assets may be in one spouse’s name. Take a case for example, in which a husband is carrying all of the couple’s debt in his name. His wife agrees that he will pay off a car, and she will pay off a credit card. But what if the wife defaults on the payments? It may be several months before husband realizes she is failing to make payments, and by then, his credit will likely be damaged. It is time consuming and costly to enforce one spouse’s agreement to pay off the other spouse’s debt. That’s why it is important for couples to specify in their divorce documents what will happen if one party fails to pay off a debt as agreed. The documents could stipulate that if one person defaults on a debt, both parties will go back to court, and the spouse who defaulted will be responsible for any costs or attorney’s fees that result from his or her failure to pay.
- Failing to refinance the home and car if they are in both parties’ names. This is a serious oversight that happens often. If the home or car is in both spouses’ names, and the couple agrees that one spouse will receive the home or car in the divorce settlement, the debt on that asset must be refinanced. If they do not refinance, then the spouse who is not keeping the car or home is still legally bound to the bank for that debt—the divorce document does not absolve him or her of responsibility for the debt, and the debt still shows on credit reports, making it difficult to obtain additional credit. The divorce documents should define a strict timeline for refinancing the asset and should specify what will happen if the couple is unable to get the asset refinanced. If that is the case, the property may need to be sold and the proceeds divided appropriately.
Following these tips will help to avoid some of the most common mistakes in pro-se divorces. But they are no subsitute for the advice of a reputable attorney who specializes in family law. One other option for pro-se litigants is to prepare their divorce documents and at least hire a lawyer for a brief document review to identify any potential problems.