Preparing / Doing Your Own Property Settlement Agreement - DON’T DO IT!
We all like to save money. We go to the Internet to find the best buy, read the grocery ads and buy what is on sale. I eat broccoli crowns and why pay $2.39/lb. when you can buy a similar item for $.89/lb. on sale!
However, preparing your own settlement agreement is different than purchasing fruits and vegetables or automobile tires at the best price available. The knowledge and experience that a licensed attorney possesses can result in an agreement that deals with your needs and has a better opportunity of being enforced.
Here are some of the areas where “self-help” persons can get into trouble:
Let’s assume that you go to the Internet and review “standard separation agreement” or property settlement agreement or some other search inquiry to help you prepare your own agreement. Let’s further assume that you select an agreement that says “This agreement follows the laws of X state” but you live in Y state. The laws of X state don’t require you to have a mandatory paragraph on dower and curtsey, (an Old English legal theory) that deals with marital real property but the laws of your state does and so you don’t adequately deal with the rights of dower and curtsey. When attempting to sell the marital residence, you find that the title company will not transfer title and, as a consequence, you lose the sale because the property settlement agreement needs to be amended and one of the parties wants to renegotiate the entire agreement.
Next example – one spouse has a Master’s Degree in Engineering and the other spouse has a high school diploma. The spouse with the Master’s Degree is a “do it yourself” person. That individual built all the couple’s personal computers, built the deck on the house and repaired the plumbing, having learned to perform these important services by buying a “How To….” book. Also, this person is the breadwinner and has dominated the high-school educated spouse throughout the marriage.
Let’s momentarily leave this example to explain that one attorney may not represent both spouses when preparing a property settlement agreement in order for the parties to save the cost of paying two attorneys. The main reasons are that it is a conflict of interest because each spouse has different and conflicting interests and ethical rules affecting lawyers do not permit one lawyer to represent both parties. Another difficulty is when spouses agree between themselves to have one of them go to one lawyer and pretend that the other spouse will go to his/her own lawyer but, in reality, never intending to do so. If the spouse who is represented by a lawyer tells the unrepresented party what her/his lawyer has told the represented spouse, or actually explains the law, the represented spouse may have acted as the agent of her/his attorney. The consequence may be that the agreement is not enforceable.
Getting back to the “do it yourself” spouse with the Master’s Degree in Electrical Engineering. Is this spouse acting as an attorney? Is Mr. Do It Yourself advising or explaining the law to the subservient spouse? In fact, Mr. Do It Yourself is practicing law and it is a crime if the subservient spouse relies on Mr. Do It Yourself.
In the immediate above example, there are other potential issues such as fraud, duress, and coercion, just to name a few. All told, Mr. Do It Yourself’s property settlement agreement will likely not be enforceable.
In addition to the examples above, there are many technical issues involved. When determining child support, have the Maryland Child Support Guidelines been properly applied? Has there been agreement as to who claims the child as a dependent or who receives the child care and other related tax benefits or loss of the tax benefits? There are also issues of tax basis as to when the home is sold before or after the divorce, will there be a marital property award. There are issues as to what is marital property and what is not; issues regarding what rights exist to the other spouse’s pension, IRAs, 401k, or Thrift Savings Plan; and issues concerning understandings automobile insurance policies and how coverage may lapse. Also there are issues concerning health insurance like whether or not an employer’s health insurance policy may or may not permit the non-employee spouse to continue coverage after the divorce.
There are many examples of self-help property settlement agreements that lead to disasters. Some disasters incur more attorney’s fees than if each party had been represented by an attorney. Also, when serious and unresolved problems exist, parties incur humiliation, frustration, and what seem to be never-ending problems.
Having prepared property settlement agreements for over 30 years for his clients in Howard County and surrounding counties in Maryland, Fred Antenberg can work toward preparing your property settlement agreement. Give Fred a call today for a Free Initial Consultation at 410-730-4404.