Top 2 Mistakes Made When Getting Divorced Without An Attorney

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

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.