Why do I need an Attorney if we have an Agreement?
The desire to save money by not retaining an attorney to handle the negotiation, drafting and court approval of a family law agreement is understandable. However there are significant dangers in handling such matters pro se (without an attorney). This risk increases when the other side has an attorney.
One of the significant dangers in handling such agreements pro se is issue spotting. While a husband and wife or mother and father may have general ideas as to how they wish to resolve their dispute, they lack the experience of a family law practitioner. Over the years, most family law attorneys develop insight into the types of problems that can develop over children, property or support and can suggest language that resolves or prevents these problems. Too often pro se litigants leave out provisions of the agreement that might have been useful in enforcing or implementing the agreement. Further, many pro se agreements are silent on issues that an experienced family law attorney would have spotted, leaving the parties in conflict when they realize their agreement doesn’t offer guidance on dealing with that problem.
The flip side of the problem of not addressing important issues is addressing these issues in a manner that typically leads to conflict. Many times my clients want some provision in the agreement that sounds helpful but, at least in my experience, often causes more problems than it resolves. While the client is the ultimate decision maker, an attorney can be vital in noting the problems that might arise in entering such an agreement and in suggesting language that meets the client’s goals without causing unanticipated or unnecessary problems.
Another problem with pro se agreements is vague, ambiguous or contradictory language. Attorneys become skilled in drafting agreements within their field of practice. Over time they develop the ability to spot such problematic language and remedy it. Ideally the language of an agreement should perfectly match the parties’ understanding of what they have agreed to. While such an ideal is never reached, an attorney’s experience and efforts can be vital to having the agreement’s language come close to matching the parties’ expectations. Too often pro se agreements lead to subsequent disputes because the language of the agreement lacks the necessary precision. Further, an agreement drafted by an attorney for one party, and reviewed by a pro se opposing party, will often contain very one-sided language because it is drafted to protect the client’s interests to the detriment of the pro se’s interests. Having an attorney review the language of an agreement can insure that such an agreement is not so one-sided.
An attorney can finally be helpful in turning an executed agreement into a family court order. While there are pro se forms that the public can use to handle such matters on their own, there are numerous procedural hurdles in the path from obtaining an executed agreement to having that agreement being made a binding final order. An experienced family law attorney knows the process and can get such agreements approved relatively quickly. It can be extremely frustrating to have the court reject an agreement because some procedural requirement was missed. Sometimes pro se litigants finally hire an attorney only after their unfamiliarity with family court procedure has delayed the approval of the agreement. For further information read: How Does One Turn a Domestic Agreement into a Binding Court Order?
Once approved by the family court, domestic agreements have long-term consequences that are hard to modify. Absent both parties’ agreement, property division, attorney fee orders and waivers of alimony or non-modifiable alimony cannot be modified by subsequent litigation. For more information read: What is and is not Modifiable in a Family Court Final Order? Further while permanent alimony and child related issues (custody, visitation, support) can always be modified upon a showing of an unanticipated substantial change of circumstances, such orders are often difficult to modify and can be even more difficult to modify if the original agreement’s language is ambiguous or one-sided.
For pro se litigants who are conversant with family court procedure and who have agreements that do not involve children, alimony or significant property, it can make sense to handle domestic agreements without retaining counsel. Most other folks would benefit from hiring counsel to guide them through divorce, child custody and child support issues.