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.

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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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6 things to look for to find the best divorce lawyer

by Oyster Shell | Jan 24, 2019 | Divorce, Family, Family Law, Legal Advice, Significant Decisions

6 things to look for to find the best divorce lawyer

First of all, what exactly is family law? Family Law is an umbrella term that applies to any type of dispute that affects families, such as divorce, child support, child custody, adoption, termination of parental rights, petitions for protection from abuse, alimony, pre and post-nuptial agreements, and more. It can also include wills, powers of attorney, health care directives, guardianships, and conservatorships.

1. Ask your family and friends

Experts currently put the divorce rate at around 39 percent, so the odds are that someone very close to you has been through a divorce. Ask them what divorce lawyer in Mobile they used and what their experience was like. Keep in mind that every person and every case is different, so the lawyer that may have been a good fit for them and their situation, may or may not be the best lawyer for you.

2. Research online

There is a wealth of information online about attorneys. If they have a website, you can learn about their background and what kind of work they do. You may also have the opportunity to read some of their writing or watch them speak in a video (like on this blog). If they do not have a website or you cannot find them online at all, that may not be a good sign.

In the Mobile, Alabama area, a lot of solo practitioners and older attorneys do not have websites, but it is not necessarily a reflection on their qualifications. It is easy for clients to post reviews about attorneys, so the process and the person is not quite as mysterious as they once were. This means it is also easy for a person who is disgruntled about their situation to hop online and blame their attorney, so online reviews need to be taken with a grain of salt too.

3. Check with the bar association

Information about attorney discipline, which is whether they have been sanctioned by the bar association for ethical violations, can now be found online at alabar.org.

4. Call their office

If you cannot get anyone on the phone or you leave a message and no one calls you back, that does not bode well for future communication and responsiveness. Some solo attorneys may not have any staff or have a small staff, so do not be alarmed if you have to leave a voicemail when you call. If you do not get a return call within 24 hours, it is probably a good idea to look elsewhere. Once you make contact, you can ask questions about consultation fees and the types of cases they take.

5. Meet with them

There is a wide mix of personalities in the legal world, just like everywhere else, so it might be a good idea to try and meet with a couple of attorneys. You will be working with this person a lot, and they may be an excellent attorney, but it is not going to work for you if you and the attorney do not mesh well.

6. Watch for red flags

An attorney can never “guarantee” a particular outcome in a case, so if the attorney is promising you the sun, moon, and stars, beware. If it sounds too good to be true, it probably is!

4 common mistakes to avoid during your divorce

by Oyster Shell | Jan 24, 2019 | Divorce, Family, Family Law, Legal Advice, Significant Decisions

4 common mistakes to avoid during your divorce

1. Not Keeping Good Records

Divorce can be a very chaotic, confusing, and stressful time. It may be more difficult than usual to remember everything that is going on or what you need to do, but ironically, it is more important than ever. A divorce case may be pending for a year or more, which only increases the difficulty.

I ask my clients to keep a log or a journal of significant events that occur while their case is pending. It can also help jog your memory of important information you need to share with your lawyer. You also need to keep records of support payments or other matters that may be disputed, such as what days which person had the children in their care.

2. Not Maintaining Clear Communication with Your Spouse

You are getting divorced, so it is safe to say communication between you and your spouse has been a problem to one degree or another. Also, spouses may use phone conversations as a pretext to start fights or cause conflict.

When you communicate with your spouse about important matters, it is a good idea to keep it in writing, such as text or email, or at least memorialize it in writing. This can be a simple as a short email that says “This will confirm we agreed you are picking Susie up this Friday at 5:00 p.m.”

3. Putting too Much Information on Social Media

Social media is great for keeping up with family and friends, sharing photos etc but it can be a trap for a lot of people. Social media is NOT the place to broadcast the details of your divorce. No matter how secure your privacy setting are, someone on your friends list will pass information about your activities on to your spouse if they think it will be helpful to them.

When you post a rant about what a jerk your spouse it or post pictures and activities of you and the person you are having an affair with, your children will see it, your children’s teachers and friend’s parents will see it, and your boss and co-workers will see it. If you need to vent, contact a trusted friend or family member or a therapist. Keep it private!

4. Forgetting that Your Spouse is Gathering Evidence Against You

When you get divorced, you and your spouse are opposing parties in a lawsuit. They can and will use every opportunity to gather evidence to use against you. They will be saving your texts and emails. They may be audio and or video recording you. It is very easy to do on your cellphone!

No matter how angry or upset you get, you need to keep this in mind. Do not say anything to your spouse that you would not want everyone, including the judge in your case to hear.

Upcoming Changes in Alimony and Taxation

by Oyster Shell | Nov 8, 2018 | Children, Divorce, Family, Family Law, Legal Advice, Significant Decisions

Under the new Tax Cuts and Jobs Act (TCJA), alimony will no longer be tax-deductible effective January 2019. Currently, alimony or spousal support payments are deductible to the payer and taxable to the payee. This applies to all current divorce or support orders and any that are signed through December 31, 2018. Effective January 1, 2019, in all new orders entered, alimony is not deductible to the payer or taxable to the payee. The TCJA also specifically provides that the tax treatment of a prior alimony payment may be modified to take the new tax treatment into account, but only if the parties agree. Modifications must specifically state that the TCJA tax treatment of alimony payments now applies.

With this deadline approaching, you may want to consider either proceeding with your divorce before the end of the year, or waiting until 2019, depending on how the taxation affects you. It may also be time for you to consider a modification of a prior order. Contact our office for a consultation if you think this applies to you.

Other resources on this issue:

https://www.marketwatch.com/story/new-tax-law-eliminates-alimony-deductions-but-not-for-everybody-2018-01-23

https://www.kiplinger.com/article/taxes/T055-C005-S001-under-the-new-tax-law-is-my-alimony-tax-free.html

What is Collaborative Law?

by Oyster Shell | Apr 11, 2018 | Alabama, Children, Divorce, Family, Family Law, Legal Advice, Mobile, Significant Decisions, Uncategorized

What is Collaborative Law?

Collaborative Law is a method of alternative dispute resolution wherein the parties commit to resolve their dispute out of court. Because parties to a divorce often need to have a continuing relationship due to co-parenting of children, Collaborative Law is ideally suited to divorce and other family law matters.

How is Collaborative Law Different?

A key difference between Collaborative Law and other forms of alternative dispute resolution, such as mediation, is the parties sign a participation agreement that sets out the parameters, including voluntary disclosure of financial information, mutual respect, insulating children from the dispute, sharing of experts such as mental health and financial professionals, and no litigation. Each party is represented by their own lawyer.

What are the Benefits of Collaborative Law?

The benefit of Collaborative Law is that you and your spouse or partner control the process and make final decisions; whereas, in litigation, the Judge controls the process and makes decisions for you. You also control the timetable which is most definitely not the case when you are involved in litigation. Collaborative Law is also private and litigation is not.

Collaborative Law is just now starting as a process in the Mobile area but has been taking place around the country and in Birmingham, Alabama, for several years. You can check out collaborativepractice.com for more information.

If Collaborative Law sounds like it may be right for your family, please contact us for a consultation. You can reach us by phone at 251-432-7909.

What Are the Benefits of Mediation in Family Law Cases?

by Oyster Shell | Mar 2, 2018 | Alabama, Divorce, Family, Family Law, Legal Advice, Mobile, Significant Decisions

Mediation is a form of alternative dispute resolution where a neutral third party, the mediator, facilitates you and the opposing party, typically your spouse or the other parent, in negotiating a settlement in your case. There are several potential benefits to mediation.

Benefits of Mediation

Privacy

Mediation is confidential. No one will know what goes on at the mediation except for the mediator, the parties and their attorneys. If you are able to negotiate a settlement, you do not have to air your dirty laundry in court.

Flexibility

You and your spouse or the other parent can negotiate a plan that is tailor-made for your needs and situation. You probably will not get that result from litigation.

Cost-Effective

If both parties are serious about resolving their differences out of court and coming to a settlement, mediation is typically far more cost-effective than protracted litigation.

Reduces Conflict

Mediation does not have the adversarial nature of litigation and can often reduce the conflict level between the parties. If you have to co-parent with this person in the future, less conflict in divorce helps contribute to a better long-term working relationship. In addition, there is a wealth of information out there that indicates that children of divorce fare far better when the conflict between the parents is kept to a minimum.

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