Divorce is a scary – and potentially expensive – process, so it’s no wonder that you want to explore all of your alternatives before you commit to a specific course of action. Is there any way at all that you can avoid hiring an attorney? Can you use one of the online do it yourself resources? What are the risks? Are there advantages – beyond saving money, of course?
Most of the online and other do it yourself divorce services are geared towards filing an uncontested divorce.
There can be a lot of confusion about what a divorce looks like and what is required by each state in order to have your divorce approved by the court.
In Virginia, to get a divorce you need to divide all of your assets, liabilities, and responsibilities – until that is done, the judge cannot sign off on your divorce decree. So, to do this, you have two options: (1) you negotiate a signed separation agreement and determine how assets and liabilities will be divided between yourselves, or (2) you go to court, have a contested trial, and let the judge decide.
I have not seen an online do it yourself service that provides a comprehensive, Virginia-specific separation agreement or any kind of material guidance with respect to creating one. Even if one existed, I probably would not trust it.
When it comes to getting screwed over or, at the very least, not receiving what you are entitled to receive under the law, this is where things are really dangerous. Once you sign a separation agreement, there is no going back. It doesn’t matter if he lied to you, if you didn’t read it, if you didn’t understand, or if you had no idea what you were really doing. Once you sign, you are all but stuck. Theoretically, it’s possible to challenge an agreement in court, but signed agreements are extremely unlikely to be overturned – and even if yours was overturned by some miracle, you’d likely have to spend tens of thousands of dollars to get to that point. It’s a lot of money to spend on what is essentially a gamble. (To be clear, when I say gamble, I don’t mean that there’s a 50/50 chance; I mean that, when you are gambling, the house always wins.)
Do I need an attorney to get a separation agreement in place?
It is probably preferable to work with an attorney, but you don’t necessarily HAVE to hire one. You could work with a mediator instead, if you prefer – though I would make sure that you are prepared for what mediation involves beforehand. Mediators are not attorneys (well, sometimes they are, but even if they are, they haven’t been retained to represent you in that capacity), so it is not their job to tell you what you are entitled to receive, to advocate for you, or to point out what the court would likely do in your situation. It is their goal to help you reach an agreement only. Most of the time, they don’t care what that agreement is and, in the worst cases, they draft up agreements that prove incredibly problematic for clients later.
You don’t have to HIRE an attorney to consult with one, though. The retainer fee may be out of your reach, but if you want to just have the benefit of an attorney’s counsel, you can always meet with them on an hourly basis. You just pay the hourly rate, rather than the whole retainer fee. In your appointment, you can have the attorney review an agreement you drafted yourself, one that a mediator drafted for you, or even one that your husband’s attorney drafted and sent to you. You can go back at different points, too, to ask follow up questions. Sometimes, people retain on an ‘advice only’ retainer; in other cases, people retain for just one specific item, like to have representation at a settlement conference. Talk to any attorney you meet with about your budget and your options; don’t be afraid to get creative.
It is important, though, that you understand what you are entitled to receive and, frankly, that you ensure that you receive, at the bare minimum, your basic entitlements under the law. Don’t know what those are?
What if I can’t get an agreement in place? Can I just go to court?
The judge can’t finalize your divorce without dividing all of the assets, liabilities, and responsibilities between you. So, if you can’t reach an agreement, you’ll have to go to court. I’ve spent all my time up to this point discussing separation agreements because that’s the easiest way to get a divorce without hiring an attorney.
Unfortunately, once you go to court, the possibility that you can resolve things without hiring an attorney dwindles significantly. You could certainly choose to represent yourself – the Commonwealth of Virginia allows pro se litigants in divorce and custody cases – but it’s very, very risky, especially if he is represented by counsel. I do not recommend this, and there is no online do it yourself program anywhere that is designed to help you handle an entire litigated divorce trial. (Frankly, even attorneys who have been to law school and passed the bar often practice for years before they handle a full divorce trial.)
Once I get my separation agreement in place, then what?
Once your separation agreement is signed (and you’ve been separated for the statutory period) you can file for divorce. At that point, because an agreement has been reached, your divorce is uncontested. There’s nothing left to resolve; the court will just have to review your documents and approve (or deny) your final divorce decree.
At this point, it is theoretically possible that you could turn to an online do it yourself divorce resource, but – frankly – I am not sure why you would. These are paid services and – at least in the instance where I checked – the site explicitly said that it used free resources available in your state wherever possible.
There ARE free resources available in Virginia – Norfolk Circuit Court offers a pro se divorce packet, the Virginia State Bar has some DIY resources, and even Virginia Beach Circuit Court has a divorce packet – so I don’t know why you’d pay for access to what is likely the same as is already available for free in Virginia. If I were you, I’d check my local circuit court first.
You may be able to ask questions, too, to a clerk at your local circuit court, but be advised that they do not give legal advice. (They may actually be completely unwilling to help, but in some cases you can prevail upon their kindness – but be very, very, very gracious and kind!)
You could also take a stab at what you find online and have it reviewed by an attorney. You don’t necessarily have to have it reviewed, but some courts – Virginia Beach springs to mind – review these documents very, very carefully and often reject them for obscure or arcane reasons. If you’ve been rejected, you can re-submit, but this is probably very little consolation if you don’t understand how you went wrong to begin with.
Not only that, but mistakes can still be made at this stage – and you don’t want to risk them. Since most of the assets and liabilities are already divided, the mistakes are minimal, but you’ll also want to make sure you incorporate your separation agreement into a final order of the court for enforcement purposes, as well as ensuring that you’ve had him served and that, for example, you’ve filed QDROs, TSP orders, whatever other retirement-related documentation you need. Most online forms will not give you access to this information; it’s not easy to provide to the masses in this way since these are highly customizable forms.
I totally sympathize with wanting to find a different way around what is often a complicated and costly problem – but I also feel like, as an attorney, I need to tell you that there are a lot of ways that trying to skirt the system can go completely wrong.
It is so important to get all of the assets that you are entitled to receive – and to avoid any unnecessary liabilities, too! In many cases, the cost of what you might give up (or what you might take on that you didn’t need to) can be worth the cost of a consultation, at the very least.
We also have free books and a low-cost divorce seminar, so I recommend that you check those out. The seminar is great because it features a chance to ask a licensed, experienced family law attorney your questions in real time.
Once you’ve signed an agreement, it may be too late. Divorce is too important to get it wrong! For more information, to request a consultation, or to get a copy of one of our free books, visit our website at hoflaw.com or give us a call at 757-425-5200.