Berman & Asbel, LLP

Beware of some quick and cheap divorces; you get what you pay for

Everybody wants a bargain.  That's true when people need legal work done too.  Sometimes however what seems like a bargain really isn't one at all.  Online legal services or do-it-yourself form kits may work for some people in some situations but for others, they can create a real mess.  As Rob Clarfeld asked in his May 17 Forbes blog post on do-it-yourself legal work, "Would you also perform surgery on yourself?"

I have had several clients who had already gotten a divorce but then had protracted litigation with their former spouses over the marital residence.  By the way, in every one of those cases, the court in Cameron County, Pennsylvania issued the divorce.  There is nothing wrong with that court.  It just so happens that the Court of Common Pleas in Cameron County, Pennsylvania charges much lower fees for filing divorce cases than in other counties and the procedural rules for divorce in Pennsylvania allow a divorce action to be filed in any county in the state.   However, if you have a problem come up and need to have a hearing, you might have to travel a long way to get to the court.

People often obtain their divorce decree with no problem but in these low-cost services, the parties are only getting a divorce decree without any resolution of their marital property issues.  If the two parties owned a house together while they were married, they still own it together after the divorce if the divorce case did not address it.  Some people may just have agreed to sell the house and split the money.  In other cases, one of the former spouses is living in the house - perhaps with children.  The other spouse, at some point, wants to get out of owning that house.  The motivation could be to convert to cash his or her share of the value of the house or perhaps the existence of a mortgage on that house is impacting that person's credit (even if the loan is in good standing) and making it harder to get a new loan.

So what happens next is that if the parties cannot agree on what to do about the house, a whole new legal action must be filed in the county where the house is located and, if the parties cannot agree on another resolution, the judge will have little alternative but to order that the house be sold and the proceeds divided.  This type of case, called a partition, can become even more expensive because in addition to the parties needing to pay for lawyers, it may also be necessary for the judge to appoint a master.  The master is a neutral lawyer who oversees the sale and division of the asset as regarding various claims for credit each party may have against the other concerning who put what into the house, who paid the mortgage, who got to live there rent-free and so on.  That master will also charge fees, which typically must be equally shared by the two parties. So that quick and cheap divorce they got is now looking much more expensive and it may end up costing them as much or much more than it would have had these property issues been handled in the original divorce case.

Failure to address property issues in the divorce can have even worse consequences for some.  When a divorce case is pending, the court has a great deal of latitude to deal with dividing up assets acquired during the marriage and the court is not bound by whose name is on the title.  The court can order assets to be transferred between the husband and wife to reach an equitable resolution.    Thus, in a divorce, one spouse may have rights to receive a share of assets belonging to the other spouse such as part of an IRA, 401(k) or sole-titled house or brokerage account.  Once the divorce decree is final, however, it is most likely that any such rights are lost and the parties then only have ownership rights to those assets on which their name is on the title.  When you are dealing with a house or other assets worth hundreds of thousands of dollars or more, one must be careful about the risks when trying to save a few hundred or maybe a thousand dollars or so.

Even in simple divorce cases with no property issues and no children, the do-it-yourself approach can cause problems.  There are certain documents that must be filed and there are rules on when they must be filed.  One mistake can lead to a chain reaction of procedural problems.  The person thinks they are filing all of the required papers and then when they try to obtain the final decree, court administrator for divorces rejects it with little explanation.  In the counties where I practice, the court administrator's office will only give a very general indication of the reason for the rejection and they do not give advice on how to fix the problem.  When individuals have come to me for help after falling into such procedural difficulties, it often ended up taking more time, and costing them more in legal fees to fix the problems than it would have cost had I handled the matter from the beginning.

Now there are ways to reduce expenses of divorce.  One part of my practice is mediated divorces where I actually work with both the husband and the wife when they are able to come to an agreement on how they want to divide their assets.  In these cases, both parties understand (and get it in writing) that I am not representing either one against the other and I am just facilitating their making an agreement.  They are always free to consult their own separate lawyer if they choose.  In cases such as these, the parties may end up only spending a fraction of what a contested divorce with lawyers on both sides would cost but by my working with them, I can help them to make sure that all the issues needing to be resolved in the divorce are considered before that final decree is signed.

Readers should not solely rely on this note but should consult with a competent attorney licensed in their state. You can also find more information in my firm's websites on Family Law and Wills and Estate Planning and Administration.

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