I’m biased. I’m a lawyer. I earn my living handling family law cases on behalf of the women who become my clients.
Also, because I am a lawyer I also (1) see the people who can’t resolve things on their own (and very few of the people who can), and (2) deal, essentially, in worst-case scenarios. Whether I’m fixing something that turned into a worst-case scenario (more on this in a minute) or I’m trying to set things up to prevent a situation from becoming a worst-case scenario in the future, I do always worry about what could go wrong.
In my experience, worst-case scenarios happen with somewhat alarming frequency. So, if I sound alarmist, please forgive me. It’s an occupational hazard.
In my opinion, though, you almost certainly need a lawyer in a divorce or child custody case. To be very, very clear, though: you are not REQUIRED to use a lawyer. You are free to represent yourself in any divorce or custody proceeding in the Commonwealth.
But is it smart? That’s a different question entirely.
To answer this question, I’ll tell a story, if you’ll allow me. It’s about reconciliation provisions. Basically, a reconciliation provision tells you what, exactly, will happen to a signed separation agreement in the event the parties reconcile and then, eventually, separate again.
So, a potential client came to us with an issue. She had – almost a year and a half back – signed a separation agreement that her husband had drafted on his own, without a lawyer. It did NOT include a reconciliation provision, which is common in all of our agreements.
At the time, it is important to note, she was in very poor health, and she was not in her best frame of mind. She waived almost everything – real estate, retirement, and spousal support – and walked away, under the agreement, with little more than access to her car and assistance with first month’s rent and a security deposit on a rented apartment.
The parties, though, reconciled after the agreement was signed. They lived together for about 7 months before they separated again.
Husband says, predictably, that the agreement survives. Wife hopes, of course, that it does not. The agreement itself is silent.
What happens next?
Well, in the absence of the parties being able to reach an agreement (which, in any case, is unlikely, because husband won’t want to negotiate against himself, and wife won’t be able to just accept the former agreement – it’s too bad), they’ll have to go to court to litigate to determine whether or not the agreement will survive.
What could an attorney have done?
Attorneys aren’t perfect. We don’t have crystal balls. But I can’t help but think that if this woman had come to us BEFORE the agreement was signed, rather than after, she’d never have been in this situation at all for two reasons.
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We would have told her not, under any circumstances, to sign the agreement as is.
We would have educated her about her specific rights and entitlements under the law, including what she could expect from a court if she were to litigate her divorce. We would have urged her to negotiate back and ask for what she deserves to receive. Whether she hired us to represent her or not, we would have reviewed the agreement and given her our opinion. This agreement should not – under any circumstances – be signed.
Would she have still signed it? Maybe – people sometimes do, after all. But she’d at least have asked the questions and gotten the advice, regardless of whether she decided to actually follow it.
We also probably would have talked to her about how difficult it is to overturn agreements once they’re signed. This case is a little extra difficult because of the reconciliation and her mental state at the time that she signed, but the fact remains: even at this point, it’s a difficult (and likely very expensive) case. A win is far from guaranteed.
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We would have included a reconciliation clause.
Our typical reconciliation clause includes a provision that, unless specifically revoked, the agreement will survive a reconciliation and subsequent separation.
This particular provision would not help her in this specific situation, if it were added to the agreement in this form – except, of course, that IF it existed, she’d at least know that the agreement stands.
Knowing that the agreement stands would mean that she doesn’t need to hire an attorney and litigate at this stage, saving her the money that she would have spent (and which, in any case, might not get her what she wants).
The way attorneys see it, we’re doing two things (1) accomplishing our client’s goals today, and (2) minimizing the possibility of future problems, like this one, coming up later on down the line.
Not only would we – had we been consulted – have advised her NOT to sign this agreement, we’d have included a reconciliation clause in the agreement as well. So, at this point, it’s very likely that (1) this agreement, in this form, would not exist, and (2) the parties would both be clear on what should happen now.
Finding out, later on down the line, that you have to spend tens of thousands of dollars on a questionable outcome (after all, she could still spend all that money only to find out that the judge thinks the agreement should survive their reconciliation and subsequent separation) is, well, pretty crappy. I could use more colorful language here, but I am, after all, a professional.
The problem isn’t reconciliation provisions. More often than not, the parties DON’T reconcile and, in any case, in almost 13 years in practice, this is the first time I’ve seen this specific issue. The problem is that what you don’t know CAN hurt you. The court WILL hold it against you. And if it’s unclear to either of you, you may face additional costs for legal fees – often far more than you would have spent to do it right in the first place.
Part of the reason that we include specific provisions in our separation agreements is because we’ve had issues come up with poorly drafted agreements and/or because other poorly drafted agreements have been litigated (whether by us or someone else) and we’ve heard or read about it. We are trying to create ironclad agreements that help everyone know what is expected of them, no matter what happens. Ambiguity is the enemy!
As a regular, non-lawyer, person, you just don’t know. It’s not your fault. That’s not a dig. I’m not being condescending! If I were to go to see you at your job, I’m sure I’d ask some questions that, to you, seem dumb or obvious. It’s not my job, though. I don’t think about it all day. I haven’t spent my life reading about it or 40+ hours a week working at it.
I have, though, in family law. We all have. And, yes, it is my opinion that to work with a lawyer is a significant benefit to you.
For more information, to request a copy of our free divorce book or to register to attend a monthly divorce seminar, give our office a call at 757-425-5200 or visit our website at hoflaw.com.