Tuesday, August 16, 2016

Do It Yourself Divorce. Part I

Some people consider doing divorce themselves. I wanted to address this question on when representing yourself in divorce is a good idea, what to be aware of and how to do it properly.

Before I go into the details of DIY divorce, it is necessary to note that the Washington state is the first state where one can get a qualified help with divorce from a Limited License Legal Technicians, also known as paralegals.
The idea behind a new invention of the legal technicians is to "offer and affordable legal support option to help meet the needs of those unable to afford the services of an attorney." However, one does not need to have low income to hire a legal technician.
They are trained and licensed to give legal advice to people going through following matters:
  1. All family law matters
  2. In a few years elder law, landlord tenant disputes, and immigration will be added as practice areas.     
 Legal Technicians can give legal advice on specific matters meaning
  1. Get relevant facts from clients 
  2. Apply legal standards to those facts and inform clients about that
  3. Give advice on how best to manage their legal action and recommend a specific course of action
  4. Perform legal research to answer client's specific questions
  5. Prepare legal documents for them
  6. Advice clients on how to represent themselves in court proceedings
Legal Technicians CANNOT

  1. represent clients in court
  2. Negotiate on behalf of the client
  3. Prepare documents other than those that were approve by the Limited License Legal Technician Board.
Legal Technicians can be found in the LLLT Directory.

 In addition to licensed legal technicians there are a wide variety of online services that offer to fill out paperwork for you and even file it with the court. They ask for a modest fee so some people feel compelled to either use them or cite their fee as a guide of how much an attorney should charge for their work.
If I were to choose between the two above-identified options,  I would go with Legal Technicians. They have to fulfill requirements to become Legal Technicians. Full list of requirements could be found here.
In contrast to Legal Technicians, qualifications of online services are unknown. As far as I understand, in front of a computer could be anyone filling out your forms for you. I would not trust my legal action to someone whose knowledge and experience is unknown.

 Now, when is it a good idea to use Legal Technicians?


First, when your funds are so limited that you cannot afford an attorney and you are not qualified for programs designed for low income clients.
Second, when your case is so small and uncomplicated that you could do it yourself (I will provide a definition of "small and uncomplicated cases" later in this post) and you do not have time to actually do it yourself.
In all other cases, you are better off with hiring an attorney to represent you.

Why you need an attorney?


 My position is that you always need an attorney to represent you in your dissolution of marriage case. There is one tiny exception to this rule. I will define it at the end of this post. The question remains: why do you need an attorney in  your divorce case?
First, your case might be complex and it would not be possible for you to even figure out your legal rights. Some cases involve many complicated legal issues such as service of process on the opposing party that is currently in another country, division of 401k plans, brokerage accounts, real estate and other property that is not easy to divide, spousal maintenance and its calculation, domestic violence and ways to deal with the allegations of it, etc. Majority of people simply do not have time to research those issues. Moreover, it is important to remember that research must be done in a law library or by using Westlaw or Lexis. Internet provides with the answers but they are incomplete and often contain only brief explanations without details that are essential in family law.
Second, you need to know legal procedure. When you are served with a motion for temporary orders, what are the deadlines for filing the response to it? Do you need to confirm the hearing? Where and how to do it? Do not forget about working copies to the judge. There might be a page limit to the motion and your declaration as well. Those and other procedural requirements are stated in the court rules and are different in different counties. Your attorney will consult Washington court rules and local rules for the county where your case is filed.
 Please remember that if you do not follow local rules, the judge might exclude the evidence, might refuse to hear your motion or might even grant the motion of the opposing party with the exclusion of your declaration.
Third, you hire an attorney to reduce stress from the divorce. Divorce is very stressful as is. Your life as you know it has ended. In the next few months you will need to divide finances with your spouse, determine parenting plan for the children, most likely to find a new place to live and move out or see your spouse to move out and deal with other issues associated with the breakup of the relationship.
 "Divorce represents the death of a marriage and all the hopes and dreams that went into it. And the death of a marriage, like any death, requires a grieving process for healing. In almost every divorce filled with unending rage, conflict, and injury is at least one spouse, if not two, resisting this process and becoming stuck. During the divorce, an emotionally intelligent person will pass through a grieving process resembling Dr. Elisabeth Kubler-Ross's five stages of grieving death (denial, anger, bargaining, depression, and acceptance). See full article here.
It is highly unwisely to add additional stress of navigating unknown legal world to the stress of separating from your spouse.
It is my job as an attorney to make sure that everything is done properly, on time, all documents are prepared correctly and in full representation of your interests. While I am dealing with all that, you can safely grieve the end of your marriage, and work on moving on with your life. What you do is very important and you should have enough time to take care of yourself.
Finally, by hiring a professional to help you through divorce process, you ensure that your divorce is going fast without unnecessary delays and avoiding mistakes. It is easier to prepare everything right the first time around than to repair mistakes made later.
For example, I have a few clients who prepared parenting plans themselves only to come back in a few years asking to make those plans more realistic. Modifications of parenting plans are difficult and require substantial change of circumstances. And they are also rather expensive and time consuming.
 When parenting plan can be changed, divisions of assets and liabilities are almost always final. If you make a mistake when dividing property and debt, the court will refuse to correct that mistake. RCW 26.09.170 expressly states that "The provisions as to property disposition may not be revoked or modified, unless the court finds the existence of conditions that justify the reopening of a judgment under the laws of this state."
That is why it is essential you do everything correctly during the divorce process. And the only way to ensure that is to hire an attorney to represent your interest.

Finally, when can you represent yourself in divorce?


It is ok to represent yourself in divorce when you case is small and uncomplicated meaning:
1. You have been married for less than a year and you did not merge your and your spouse's finances yet or finances could be easily separated. The shorter the marriage, the easier it is to put people in the same position as they were before the marriage. Short marriage also usually means that people did not buy property together and in general it is easier for them to agree on how to divide assets and liabilities.
There is an exception to short term marriage rule - parties have no minor children, and no property (except cars and small bank accounts), and they reached an agreement on how this property should be divided between them.
2. You have no children with your spouse. Having children means that you will have to agree on Parenting Plan and calculate child support. Creation of workable Parenting Plan might be a challenge. It is essential to remember that changing parenting plan is not that easy, especially when the other party disagrees. Correct calculation of child support is also essential. Also the fewer documents to need to prepare to divorce, the fewer mistake you will make. Adding Order on Child Support, Child Support Worksheets, and Parenting Plan to the list of documents to prepare is increasing your chances of making mistakes that will be difficult to correct after the divorce is finalized.
3. You and your spouse both work. If you both can support yourselves and especially if your incomes are similar, issues of spousal maintenance and attorney's fees are eliminated.
4. You and your spouse agree on all issues.
If your case is small and uncomplicated as defined above, read on. In the next blog post I will explain how to start the divorce process.