If you and your spouse are able to reach an agreement on all of the issues of divorce, that is a great start to the process. In an uncontested divorce, once that agreement has been reached, or even before, the next step is asking yourself whether or not it is beneficial for you or your spouse, or both of you, to obtain the advice of a divorce attorney to finalize your case.
When a spouse in a divorce case chooses to represent themselves in their divorce, they are held to the same standard as a divorce attorney. They are required to understand and follow the court procedures, and also know the laws that apply to the details of their case. The benefit of not having an attorney to finalize the case is not paying attorney fees, however, usually, the risks of not having an attorney outweigh the benefit of not having any legal fees.
The attorney’s role in a divorce case is to obtain all the facts of a case to divide the assets and debts equitably between the parties, and to address all other issues pertaining to the marital estate and any potential non-marital property.
An attorney is also familiar with the court process to ensure everything goes smoothly to finalize the case.
Risks to Representing Yourself in an Uncontested Divorce
If you choose to represent yourself in an uncontested divorce there are many risks and drawbacks to doing it yourself. Here are a few things to consider before going it alone:
- Property division agreements are final after 30 days – If a mistake is made in the divorce paperwork, once 30 days have gone by after the date of divorce, you are stuck with the language in the marital settlement agreement. If you realize too late that you made a mistake in the division of joint assets or debts, fail to correctly comprehend the tax consequences of certain arrangements, or realize that somehow your ex-spouse received an unfair advantage, you have no legal recourse.
- An Allocation of Parental Responsibilities is Final for 2 years – if there are minor children involved and you and your spouse reach an agreement as to the allocation of parental responsibilities, this decision cannot be changed for 2 years except in the rare case of serious endangerment to the minor child. Allocation of parental responsibilities involves decision-making for the minor child or children for education, medical, religion, and extra-curricular activities. You would still be able to modify parenting time upon a substantial change in circumstances, but the parent who makes decisions for the minor children would be in place for at least 2 years.
- You could be stuck with an incorrect child support or maintenance amount – child support and maintenance are now calculated using a formula unique to the state of Illinois, and knowing the other spouse’s true income is necessary to determine the correct amount. There are also other deductions and credits that could apply to one of both support amounts that you might inadvertently not get the benefit of if you are paying or receiving child support. Child support and maintenance are also not easy to change once a support amount is entered by the Court. Both numbers are only able to be changed based on a change in circumstances.
- Coming back to court later is expensive – if you or your spouse have to go back to court later due to a mistake in the paperwork, and an attorney is needed to fix the mistake, the post-decree litigation can et expensive. Doing everything correctly with an attorney the first time is worth the attorney fees to avoid attorney fees and possibly expensive litigation trying to fix the agreement after the fact.
- The court might not let you enter the agreement – if you and your spouse don’t know the laws that need to be followed, or don’t know what information is required to be included in the agreement, the court might not let you get divorced after all. Before you are divorced, the Court must approve the agreement between you and your spouse to ensure it is reasonable and fair and follows the law. If you make it to that final court date to enter the agreement and get divorced, the Court might review the paperwork and decide not to approve it. Retaining an attorney from the outset, or an attorney to at least review the final agreement would have saved you time and possibly even additional litigation to get divorced.
These pitfalls are just a few examples of what could happen if you don’t retain an attorney for your uncontested divorce. Reaching an agreement with your spouse on all issues is quite an accomplishment, but hiring an attorney is beneficial to genmake sure your agreement is equitable, follows the applicable laws, is accurate, and will be accepted by the Court for entry.