What is the difference between divorce and a legal separation?

by Alison Herlihy | Nov 20, 2023 | Alabama, Divorce, Family Law

What is the difference between divorce and a legal separation?

Divorce is a big decision – no, it’s a huge decision. Understandably, we often see clients who come in for an initial consultation who are unsure about whether to take the big step of filing for divorce. Many clients ask whether they should consider a legal separation. If you are wondering what is the difference between divorce and a legal separation, this article will explain what makes these two options different.

What is legal separation anyway?

The Alabama Code provides for legal separation at Ala. Code §30-2-40, which states as follows:

(a) The court shall enter a decree of legal separation if all of the following requirements are satisfied:

(1) The court determines that the jurisdictional requirements for the dissolution of a marriage have been met.

(2) The court determines the marriage is irretrievably broken or there exists a complete incompatibility of temperament or one or both of the parties desires to live separate and apart.

(3) To the extent that it has jurisdiction to do so, the court has considered, approved, or provided for child custody, and has entered an order for child support in compliance with Rule 32 of the Alabama Rules of Judicial Administration.

(b) A legal separation is a court determination of the rights and responsibilities of a husband and wife arising out of the marital relationship. A decree of legal separation does not terminate the marital status of the parties.

(c) If a party files a complaint for a decree of legal separation rather than a decree of dissolution of marriage, the court may grant the legal separation. The terms of a legal separation can be modified or dissolved only by written consent of both parties and ratification by the court or by court order upon proof of a material change of circumstances. A proceeding or judgment for legal separation shall not bar either party from later instituting an action for dissolution of the marriage.

(d) The court shall order that the terms of the legal separation relating to alimony or a property settlement be incorporated into a final divorce decree only if agreed to by the parties. Otherwise, the court may consider, but is not bound by, the provisions of the legal separation relating to alimony or a property settlement upon a final dissolution of the marriage.

(e) If either party to a legal separation later institutes an action for dissolution of the marriage, the best interest of the child standard shall apply to the determination of child custody.

(f) Upon written consent by both parties, after entry of a decree of legal separation, all of the following provisions shall apply:

(1) The earnings or accumulations, including the retirement benefits, of each party received after the entry of the decree of legal separation are the separate property of the party acquiring the earnings or accumulations, and shall not be considered by the court in a subsequent divorce action.

(2) A spouse may convey his or her real estate without the signature or consent of the other spouse.

(3) Each spouse may waive all rights to inheritance from the other spouse pursuant to Section 43-8-72.

(g) Court costs for a legal separation may be assessed as if a dissolution of the marriage was requested and may be taxed by the court accordingly.

Ala. Code 30-2-40 Legal separation (Code Of Alabama (2023 Edition))

It is important to note that in the code section above, the terms divorce and dissolution are used interchangeably.

In a legal separation, one party would file a complaint for legal separation. In order to obtain a decree of legal separation, both spouses have to want a legal separation instead of a divorce.

If one spouse files a complaint for legal separation and the other spouse files a complaint for divorce, the court will grant the divorce.

Many clients think that a legal separation is a more informal matter that takes less commitment or less expense than a divorce, or they view it as more of a temporary measure.

A legal separation is filed just like a divorce and can involve extensive financial discovery if those issues are contested.

As you can see from the Alabama Code, a court has wide-ranging powers in what can be addressed in a legal separation. A legal separation can include custody and visitation with children, child support, alimony, and division of all of the marital assets and debts.

The main difference between a legal separation and a divorce

After you jump through all the procedure hoops, you are still married to the other party when your legal separation is final.

If you decide you want to divorce later, you still have to file for divorce and jump through all the same procedural hoops, potentially costing yourself a lot more money by going through very similar proceedings twice.

If you and your spouse need time apart while you work on your marriage or decide if you want to file for divorce, you can always agree to live separately without going through the formal process of filing a legal separation.

After 18 years of practicing family law, I have only ever handled a few legal separations in my career. The reason is because a legal separation does not meet the needs of the vast majority of clients.

Very rarely, we will see client who has very specific reasons that they need or want to separate legally but remain married to each other – a couple of examples would be religious reasons; clients who know they will never get remarried and see no reason to be divorced; or if parties need to remain legally married for insurance or other benefits.

As explained above, if you legally separate, you are still married.

If you want more information on the difference between a legal separation and a divorce, contact our office to schedule a consultation.

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Author: Alison Herlihy

Family law attorney Alison Herlihy is a native of Mobile, Alabama. Alison has engaged in the private practice of family law since 2005, focusing primarily on domestic relations, divorce and child support, child custody law, adoption law, juvenile, probate practice, and wills.

Alison Baxter Herlihy earned the prestigious AV Preeminent peer review rating from Martindale-Hubbell, which recognizes attorneys for the highest levels of legal ability and professional ethical standards. Alison is a certified Guardian Ad Litem. In 2015, Alison became a Registered Mediator on the Alabama State Court Mediator Roster, in both general and domestic relations mediation.

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What Happens After Serving Divorce Papers to Your Spouse?

by Alison Herlihy | Oct 24, 2023 | Alabama, Divorce, Family Law

What Happens After Serving Divorce Papers to Your Spouse?

Filing for Divorce: The Next Steps

You have filed for divorce and you may be wondering, “What now?” First of all, let’s talk about what “filing” for divorce means. If you are talking to a divorce lawyer or court personnel, “filing” for divorce means you have actually filed a Complaint for Divorce with the Court.

A lot of clients will say they have “filed” for divorce, when, in reality, what they mean is they have consulted with a divorce lawyer, retained a divorce lawyer, or sent their spouse agreement paperwork to consider.

Once you have filed your Complaint for Divorce with the Court, what comes next? Once your complaint is filed, it becomes an official pending case with the Court system. It will be assigned a unique case number. Then, the Clerk of court issues the Complaint with a Summons for service.

If your complaint is filed electronically, this happens automatically, and your lawyer receives the summons immediately in their email. If you are representing yourself and you paper-file a complaint at the courthouse, it takes more time for the clerk to process the hard copies.

Next, you (or your lawyer on your behalf) are responsible for having your spouse personally served with the Complaint for Divorce.

Who Can Serve Divorce Papers: Understanding Your Options

Service of process in a divorce case is dictated by Rule 4 of the Alabama Rules of Civil Procedure. Personal service can be affected by a process server, which may be either the sheriff’s department or “other designated person”, also known as a private process server.

A private process server can be any person over the age of nineteen, who is not a party to the case, and who is not related within the third degree by blood or marriage to the party seeking service of process.

We recommend that all of our clients use a private process server, as it has proven time and again to be the most efficient option for a fairly small expense, typically between $55.00 – $125.00. Another benefit of using a private process server is that you can communicate with them as to the best time to serve the Defendant.

This is especially important in divorce cases where often parties still reside together. There may also be domestic violence issues, so it is important to have your safety plan in place prior to service. You are not able to do any of this coordination with the sheriff’s department, which is why our firm recommends private process servers.

Service can also be accomplished via certified mail, but this method tends to be very unreliable as people anticipating litigation tend to not pick up their certified mail.

The Defendant may also accept service by picking up a copy of the Complaint and Summons from the Clerk of Court.

What Constitutes “Good” Service?

First, service must be accomplished within 120 days of the filing of your complaint, or your case will likely be dismissed by the Court.

Rule 4 of the Alabama Rules of Civil Procedure also sets out what is considered to be valid service under a variety of circumstances. If the Defendant is an adult, then they can be served by handing the paperwork directly to them, by leaving the paperwork at their residence with another competent adult who also resides there, or by delivering it to an agent authorized to receive service of process on their behalf (such as if they have someone with Power of Attorney).

If the Defendant is a minor, their parent or guardian must be served, and, if the minor is over the age of 16, they must also be served. If the Defendant is incompetent, then service is effected upon their legal guardian or other caregiver if there is no legal guardian.

If the Defendant is incompetent and confined to an institution for the mentally ill, then service must be effected upon the superintendent of the institution. If the person is incarcerated in prison or jail, they still must be personally served.

If the Defendant lives in another state, they may still be personally served by a private process server or by certified mail.

After Serving Divorce Papers: What to expect

After the divorce papers are served, the process server has to complete the return on service section of the summons which was previously issued by the clerk of court.

This form says the first and last name of the person served, the date and time of service, and includes the signature of the process server. The process server either returns this form directly to the court, or to your attorney for filing with the court.

Once the Defendant has been served, they will typically retain their own attorney to file an answer to the complaint for divorce and a counterclaim for divorce.

Your attorney receives copies of all filings via email, and we will send you copies of those filings the same day via your confidential, secure client portal.

Timelines and Wait Times

The date of service is the date that all relevant timelines begin to run. The Defendant has 30 days from the date they were served to file an answer to the complaint. We almost always serve discovery for the Defendant to answer along with the initial complaint.

Discovery is made up of questions the Defendant must answer and documents and other tangible items they must provide about issues relevant to the divorce case, such as assets, debts, and physical evidence. The Defendant has 45 days from the day they were served to answer their discovery in this fact situation. If they do not answer timely or completely, there are certain legal procedures we must follow to obtain their answers.

Discovery is typically the longest part of the divorce process, as we want to make absolutely sure we have complete information before taking your case to trial. Discovery can also include the filing of subpoenas for records to non-parties and depositions of the parties or other witnesses. The discovery process typically takes several months.

If your divorce case cannot be settled without a trial, it typically takes 6-12 months in Mobile County to get to a trial date after your complaint for divorce is filed and service is completed in your case.

If you are looking for a firm that can be there with you every step of the way to make sure things are done right, from the initial service of process all the way through the conclusion of your case through settlement or trial, contact Herlihy Family Law.

Author: Alison Herlihy

Family law attorney Alison Herlihy is a native of Mobile, Alabama. Alison has engaged in the private practice of family law since 2005, focusing primarily on domestic relations, divorce and child support, child custody law, adoption law, juvenile, probate practice, and wills.

Alison Baxter Herlihy earned the prestigious AV Preeminent peer review rating from Martindale-Hubbell, which recognizes attorneys for the highest levels of legal ability and professional ethical standards. Alison is a certified Guardian Ad Litem. In 2015, Alison became a Registered Mediator on the Alabama State Court Mediator Roster, in both general and domestic relations mediation.

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4 Reasons why divorce will not bankrupt you

by Alison Herlihy | Sep 26, 2023 | Division of Assets, Divorce, Family Law

4 Reasons why divorce will not bankrupt you

Many people are concerned about the financial implications of a divorce, and understandably so. Divorce necessarily requires that your family’s income has to go from supporting one household to supporting two households, so lifestyle adjustments are often inevitable.

Alabama is an equitable division state

Alabama is an equitable division state. This means that assets and debts which were accumulated during the marriage are supposed to be divided equitably by the Court. The Court is not constrained by whose name the asset or debt is in or who provided the actual financial contribution to the asset.

Even if you did not work outside the home during the marriage, you will still get a fair share of the assets because you have made contributions to the marriage through your time and effort. If your family’s assets and income substantially exceeded your debts going into your divorce, you should come out of your divorce with enough to make a fresh start.

Our Court’s Status Quo order

When you file for a divorce in Mobile County, our court almost immediately enters their standard pretrial order, which most people call their “status quo” order. This means that assets are to be preserved and not disposed of until the divorce is final.

It also means that family bills and expenses are to be paid in the same manner as they were paid prior to the divorce being filed. These provisions are designed to preserve the family’s finances for the benefit of both parties until the divorce is over.

Here are some of the relevant provisions from the pretrial order from the domestic relations court in Mobile County:

Payment of recurring expenses. It is the intent of the Court for the parties to maintain the status quo as it existed during the marriage and prior to the decision to file for divorce to the extent possible. Therefore, it is Ordered that the parties continue to pay all debts and other regular expenses, including but not limited to rent, mortgage payments, utilities, cell phone, car loans, gas, food, insurance, children’s school and/or child care expenses and other necessary living expenses in the same manner and from the same source as they were customarily paid in the months leading up to the filing of the divorce. If the Court is called on to determine what is customary, the Court will review the average expenditures in the six (6) months leading up to the filing of the Divorce and any other information that may be relevant to that determination.

Preservation of assets and access. Without prior Court authorization or the written agreement of both parties, the parties shall not:

a. sell, assign, transfer, conceal, liquidate, encumber, dissipate, destroy, damage or otherwise dispose of assets presently in their control, nor shall they direct or permit the same to occur;

b. make withdrawals from, encumber, or liquidate any account with a financial institution including but not limited to checking, savings, money market, CDs, or the like (except for the ordinary expenses necessary to maintain the status quo as Ordered in paragraph 6 above or to pay lawyer’s fees or litigation expenses herein);

c. withdraw from, borrow against, change the beneficiary designation or otherwise reduce any retirement accounts, stock purchase plans, or the like;

d. change any insurance policy (medical, life, property, etc) including making any changes to coverage, amount or term, ownership, beneficiary designation, or allows such policies to lapse;

e. terminate, allow to lapse, or otherwise adversely affect any utility service, including water, gas, electric, cable, internet, telephone or other services, or withdraw deposits therefrom;

f. terminate or limit the other spouse’s access to credit cards to which they have customarily had access prior to the divorce being filed;

g. destroy or alter any records of any kind, including electronic data files; or h. limit the other party’s access to the home (unless the parties have already agreed to separate prior to the divorce being filed), safe deposit box, financial records or storage unit(s) to which that party normally had access during the marriage.

However, this Order shall not prohibit the use of earned income to pay reasonable and necessary debts and living expenses of the parties as required under paragraph six (6) above or when necessary in the normal and reasonable course of operating a business.

Creditors cannot come after you for your spouse’s debts

A lot of people have a common misconception that, if you are married, you are legally responsible for your spouse’s debts. This is not true. If your spouse has a gambling problem or a spending problem, they take out a bunch of new credit cards and max them out, the credit card companies cannot come after you to collect debts that are in your spouse’s name.

If both of your names are on the debts, that is a different story. When you and your spouse have a joint credit card, the credit card company just wants their money, and they will collect it from either person whose name is on the card. If your spouse suddenly insists that credit card debt be transferred to your name, that is a major red flag. If you are already feeling like you cannot trust your spouse, do not agree to put any new debts in your name for their benefit.

The divorce court has wide jurisdiction to enter equitable, or fair, orders on how the family’s debts should be divided. The divorce court is not necessarily bound by whose name the debt is in, but they will look to who used the card or who benefited from the debt in making a fair decision.

Separating your finances can protect you from financial mismanagement by your spouse

One of the most common reasons we see people getting divorced is due to different attitudes about money, for example, one spouse is a saver and one is a spender. That can cause a lot of tension to build up over the years when you fundamentally disagree about money.

Often when people are married, they commingle all of their family finances. If that is the case, you have no control over how your spouse uses those funds, even if you do not agree. Money in a joint bank account is equally owned by both of the people in the account. If your spouse thinks it is a good idea to go out and buy $10,000 worth of rugs without discussing it, that can cause some major issues.

If your spouse is dealing with issues such as mental illness or addiction, that can go hand in hand with erratic spending. If you want your spouse to work and they refuse to do so, that can cause financial strain on your family. If any of these scenarios sound familiar, you may be better off financially after you are divorced because you will be in control of your own finances.

If you are already in a financial position where your debts exceed your assets and income, you may need to turn to bankruptcy to get some financial relief. There is no shame in that – bankruptcy relief exists for a reason! You should certainly contact a bankruptcy lawyer if you need advice on a potential bankruptcy. If you need advice or representation for your divorce, please contact us at Herlihy Family Law.

Author: Alison Herlihy

Family law attorney Alison Herlihy is a native of Mobile, Alabama. Alison has engaged in the private practice of family law since 2005, focusing primarily on domestic relations, divorce and child support, child custody law, adoption law, juvenile, probate practice, and wills.

Alison Baxter Herlihy earned the prestigious AV Preeminent peer review rating from Martindale-Hubbell, which recognizes attorneys for the highest levels of legal ability and professional ethical standards. Alison is a certified Guardian Ad Litem. In 2015, Alison became a Registered Mediator on the Alabama State Court Mediator Roster, in both general and domestic relations mediation.

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10 Documents you need if you are getting divorced in 2023

by Alison Herlihy | Aug 21, 2023 | Divorce

10 Documents you need if you are getting divorced in 2023

Almost every new client that comes to our office to consult about divorce has the same questions:

How much child support will I get?

How much child support will I have to pay?

Will there be alimony? If so, how much will it be?

What will happen to our house? Can I keep the house?

What kind of asset division or property settlement will I get?

Does retirement get divided? How does that work?

How will our debts be paid or divided?

For your divorce lawyer to be able to give you well-informed answers to these questions, you will need to know the basic information about your family’s financial picture.

At Herlihy Family Law, we have all of our potential clients complete a Client Information Sheet that asks for this information so that we can give you the best advice possible and make the best use of your time and money in your consultation.

Of course, we understand that it is not always possible for you to obtain this information if your spouse controls all the finances, for instance, but gather as much information as you can.

If you do not have the documents, you can always request copies of anything that your name is on directly from the financial institution or other business entity.

Here is a list of Herlihy Family Law’s recommendations for the top 10 Documents you need to prepare for your divorce in Mobile, Alabama:

1. Tax Returns

Try to obtain copies of the last three years of income tax returns. Sometimes, income can fluctuate, so if you have three years of tax returns, that can give you a good estimation of what average income looks like.

If there is a family business or rental property involved, you need to get copies of both personal and business or corporation tax returns. You will want complete copies, including every page of the tax return itself, plus any required attached documents which reflect income, such as W-2s, 1099s, and K-1s.

If you do not have copies, you can always ask for copies from your accountant or tax preparer, or directly from the Internal Revenue Service.

2. Pay Stubs

A year-to-date pay stub for both yourself and your spouse can be used to calculate child support. Often, one parent will cover the minor children’s health insurance through their employer, so the cost of health insurance will be reflected on the pay stub. The out-of-pocket health insurance cost is factored into child support.

Pay stubs can also be helpful to reveal information about other deductions, such as an employer-sponsored retirement plan or life insurance.

3. Financial Account Statements

If possible, you want to have copies of at least the last 12 months of statements for all financial accounts. Twelve months is recommended so you can assess if any monies have been moved or liquidated in anticipation of the divorce, or if any accounts have significantly changed in value.

If you cannot get twelve months, attempt to obtain at least the most recent statement for every account so you know what your monetary assets are right now.

Even if your spouse normally gets the statements or has online login access, you can obtain copies directly from the financial institution of any account that your name is on.

Examples of the types of accounts you want statements for would include: checking accounts, savings accounts, business bank accounts, money market accounts, certificates of deposit, IRAs, 401Ks, pensions, mutual funds, investment accounts, etc.

4. Statements for Credit Cards or other Debts

You will want copies of statements for all credit cards or other debts. Just like with financial accounts, try to get twelve months of statements. If that is not possible, you will want at least the most recent statements for all debts so you know what you owe.

Credit card statements, in particular, can be a wealth of information about the other party’s spending habits and behavior.

Examples of the types of debts would include credit cards, mortgages on real estate, vehicle or boat loans, personal loans, home equity lines of credit, promissory notes, etc.

5. List of household goods and furnishings

When you get divorced, you will need to divide up all of your household goods, furnishings, and other personal property. Go room by room and make a list of all the items. If you have items located at multiple places, such as a family business or vacation property, make sure to note where the items are located. Taking photographs can be helpful as well.

6. Identification Documents for yourself and your children

You will want to obtain the originals, or at least copies, of all identification documents for yourself and your children, such as birth certificates, passports, social security cards, driver’s licenses, or other photo IDs.

Immunization records are also required for school enrollment, so you will want copies of those as well.

7. Copies of regular recurring monthly bills

When you get divorced, you often need to figure out your monthly living expenses, as that is relevant to issues such as alimony. Sometimes, it is hard to figure these out without copies of the bills.

Gather copies of your regular bills for the past 6-12 months so you can determine your average monthly expenses.

Examples would include the items listed above plus power bills, water bills, cable/internet bills, invoices related to your children’s school and extracurricular expenses, grocery and gas receipts, and medical and dental bills which are not covered by health insurance.

8. Cellphone bills

If you are on a family cellphone plan, you can request itemized cellphone bills for all the phones on the plan. The bills will reveal both incoming and outgoing phone calls and text message activity.

It will not reveal the contents of text messages, unfortunately, but knowing who your spouse is communicating with and when can be very valuable information in a divorce.

We have even had a client whose spouse bought another unknown person a $1000 cellphone on the family plan, and the client did not even know it until they obtained a copy of the itemized bill!

9. Relevant evidence in your case

Any items you have access to can be relevant evidence in your case. This could include items on your own cellphone, such as text messages with your spouse, photographs, or video and audio recordings. It could also include video footage from your home security cameras, or mail, receipts, or other paperwork you have found in your house.

Remember though, if you bombard your lawyer and their staff with thousands of text messages, it will make your legal fees go up as the team has to spend time reviewing everything you provide. When you gather evidence, keep in mind what you are trying to prove or show.

A text message between you and your spouse that says “Please pick up our daughter’s birthday cake,” and they reply “OK,” does not really prove anything. If your spouse texts you, “I am really sorry I cheated on you and I promise I will never do it again” — that could be important to your case.

10. Your calendar or log of significant events

A divorce case in Mobile, Alabama can take a year to get to trial sometimes. Unlike other types of legal cases, the parties to a divorce are often frequently interacting with each other throughout the pendency of their case; therefore, they can almost constantly create new evidence through these interactions.

There can be ongoing new developments that affect your case – someone gets arrested, someone files bankruptcy, someone goes to the hospital, etc.

It can be impossible to remember everything that has occurred over what is probably the most stressful year of your life, so it is a very good idea to keep a log or calendar to note down any significant events that occur leading up to your divorce being filed and while your divorce case is pending.

Conclusion

If you spend some time and effort really getting organized, you will feel much more prepared, informed, and confident going into your divorce. Knowledge is power! These ten items are a great place to start.

Author: Alison Herlihy

Family law attorney Alison Herlihy is a native of Mobile, Alabama. Alison has engaged in the private practice of family law since 2005, focusing primarily on domestic relations, divorce and child support, child custody law, adoption law, juvenile, probate practice, and wills.

Alison Baxter Herlihy earned the prestigious AV Preeminent peer review rating from Martindale-Hubbell, which recognizes attorneys for the highest levels of legal ability and professional ethical standards. Alison is a certified Guardian Ad Litem. In 2015, Alison became a Registered Mediator on the Alabama State Court Mediator Roster, in both general and domestic relations mediation.

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Top 2 Mistakes Made When Getting Divorced Without An Attorney

by Alison Herlihy | Jul 24, 2023 | Alabama, Child Support, Children, Custody, Division of Assets, Divorce, Family Law, Significant Decisions, Uncategorized

Top 2 Mistakes Made When Getting Divorced Without An Attorney

What if there are no attorneys involved at all?

In recent years, there has been a proliferation of websites and services that promise they will sell you a simple and easy set of “do-it-yourself” divorce papers for as low as $99!

Have you ever heard of that old saying – you get what you pay for? Well, that is as true in the legal world as anywhere else.

We have represented countless clients over the years who purchase “do-it-yourself” divorce papers from an online service only to find that the papers are not in compliance with state and local requirements.

In Alabama, there are several other forms required along with your signed agreement when you file an uncontested divorce. In every divorce case, the Defendant must sign an answer and waiver form, and you must prepare a proposed Judgment of Divorce order for the judge to sign.

If you have children, there are even more forms that are required by the State of Alabama, including CS-41 income affidavit forms for both parties, CS-42 child support guidelines, and a CS-43 notice of compliance form.

Additionally, when you have children, the agreement itself has numerous required provisions that must be included, such as that both parties must attend a parenting class, specific language for an income withholding order for child support, and the entire text of the Alabama Parent-Child Relationship Protection Act.

If you file your divorce papers with no attorneys involved, and the paperwork is incorrect, the Clerk of Court will flag the paperwork and it will not even be sent to the child until the paperwork is corrected.

Here is the catch – the clerk of court cannot give you legal advice to explain to you how to correct the paperwork, so oftentimes clients end up hiring our office to re-file the correct paperwork after they have already had to pay for a “do-it-yourself” divorce.

If your paperwork is incorrect and your filing is flagged, the clerk will set a deadline in your case called a “disposition docket,” which means you have until that date to submit corrected paperwork.

If you don’t meet the deadline, your case will be dismissed. If your case gets dismissed, and you have to re-file for divorce, you will have to pay a second filing fee to the court.

The moral of the story is, if neither party has an attorney, you might end up having to pay for your divorce twice.

What if my spouse has an attorney and I don’t?

In Alabama, divorce lawyers are not ethically permitted to represent both parties in a divorce case. Even if you agree on everything, a lawyer can only represent one party.

I cannot begin to count all the clients I have met with over the years who have told me, “When we got divorced, we used the same attorney.” I end up having to explain to them that that means their spouse had an attorney, and they did not.

This type of client is typically in my office because they did not understand the agreement they signed or they are dissatisfied with it in some way. Unfortunately for this client, there are limited circumstances under which you can change the terms of a divorce decree by an agreement that has already been entered by the court.

Often, these clients are stuck with unfavorable terms that they agreed to because they chose to sign an agreement without getting legal advice. Any terms of your divorce that are related to assets and debts are final when the divorce is final, and are not modifiable.

Terms of your divorce that relate to child custody, visitation, and child support can be modified but only if there has occurred a sufficient change in circumstances since the divorce was granted.

If your spouse hires a lawyer to draft up the paperwork, your choices are either (a) get your own lawyer, or (b) proceed without a lawyer.

If you choose to proceed without a lawyer, that means you have no one to obtain legal advice from if you have questions about what you are legally entitled to or what is fair. Your spouse’s lawyer’s job is to do what is best for your spouse, not you.

For example, say you and your spouse jointly own your marital home together, with both of your names on the deed and mortgage. You agree your spouse can keep the house, and their lawyer draws up a divorce agreement that says you will deed the property over to your spouse.

If you choose not to obtain your own legal advice, you may not know or understand that signing a deed will not remove your name from the mortgage.

As stated earlier, matters related to assets and debts are not modifiable.

This means that you are now stuck with your name on a joint mortgage with your ex-spouse! If they make the payments late, this will hurt your credit. Even if they make the payments on time, having your name on this mortgage may prevent you from being able to qualify for your own mortgage for years to come.

As you can see from the very common example above, even a one-time consultation with their own divorce lawyer could have saved this client from a very costly mistake.

If you are considering divorce and you’re not sure if you should hire a divorce lawyer, schedule a private consultation with one of our experienced divorce attorneys today.

Author: Alison Herlihy

Family law attorney Alison Herlihy is a native of Mobile, Alabama. Alison has engaged in the private practice of family law since 2005, focusing primarily on domestic relations, divorce and child support, child custody law, adoption law, juvenile, probate practice, and wills.

Alison Baxter Herlihy earned the prestigious AV Preeminent peer review rating from Martindale-Hubbell, which recognizes attorneys for the highest levels of legal ability and professional ethical standards. Alison is a certified Guardian Ad Litem. In 2015, Alison became a Registered Mediator on the Alabama State Court Mediator Roster, in both general and domestic relations mediation.

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