The internet wants you to believe that any issue you are experiencing can be solved by watching a two minute tutorial on YouTube. The problem with a handful of “Do It Yourself” projects is that “Doin’ it Yourself” sometimes creates more problems than solutions.
Virtually every week I sit down with individuals that are forced to iron wrinkles that have slowly developed from the divorce or custody case that they personally mishandled. Usually the parties were previously amicable and the agreement seemed sensible and fair. Maybe the parties were in a hurry and wanted a “one size fits all” divorce. Possibly one party manipulated the other party into reaching a lopsided agreement based on guilt, fear, or fuzzy representations. More than likely the parties’ believed that they could reach a fair and mutually advantageous agreement without involving a dreaded six letter word – LAWYER.
Time passes. For any number of reasons, the amicable relationship turns sour and one begins to notice a collection of holes in the “fair” agreement.
Here are a handful of “DIY” problems that I routinely encounter with Divorce/Custody pleadings that were created by unrepresented parties.
- Martial Settlement Agreements:
Every divorce requires a Marital Settlement Agreement that distributes community property and liabilities. Nevertheless, every divorce does not require a fair MSA that accurately reflects New Mexico law. MSA’s are essentially contracts that dictate how community property and debt will be distributed upon divorce. Like any other contract, the court will honor bad or lopsided agreements. Unfortunately, many pro se litigants enter MSA’s that do not align with one’s rights under NM law.
Checking Small Boxes with Random Disregard for the Large Consequences:
Most pro se divorce packets that I’ve seen have a collection of small boxes that the parties check regarding property, debt, and other important rights. At times pro se litigants hurriedly check these little boxes not knowing that the small marks that they’re making have a huge impact on their future. For instance, a pro se litigant might be entitled to alimony, property, or a portion of the other party’s retirement – but then unknowingly checks a small box divesting themselves of any interest in the property. Moreover, the boxes do not account for bank accounts, investments, retirement accounts – or community property vs. separate property – leading to a plethora of potential downstream issues.
Often pro se litigants agree to shoulder more community debt than they are required to assume. Additionally, pro se litigants typically enter MSA’s without safeguards such as an important “Non-Dischargeable debt” clause. This clause indemnifies both parties from being pursued by creditors in the event that the other party assumes community debt, and subsequently files for bankruptcy. In other words, without a “Non-Dischargeable Debt Clause” the bank could come after you for community debt that your ex assumed during the divorce, and then subsequently discharged in bankruptcy.
Pro se litigants often enter agreements that require one party to take a series of steps, yet fails to set deadlines for the actions to take place. For instance, when a home is purchased during the marriage, the parties generally take one of two paths to dissolve the community interest: (1) One party refinances the home, with one party buying out the other party’s interest; (2) The parties sell the home and then split the resulting equity/debt. Nevertheless, the agreement fails to anticipate one party refusing to execute the necessary documents, or otherwise acting in bad faith to stall the process.
In this situation, it becomes increasing evident as time passes that the other party is not acting in good faith to sell the home, or complete the refinance process – requiring one party to re-open the divorce, bringing the issue before the assigned judge with the appropriate motion.
- Parenting Plans:
New Mexico courts require valid parenting plans that outline custody, timesharing, child support, and other issues affecting the children before granting a divorce to couples with children. Similarly, unmarried parents with children are required to complete Parenting Plans when New Mexico courts become involved with issues involving the children.
Parenting plans that are completed by pro se litigants often contain a wealth of potential issues regarding the ongoing, regular timesharing between the parents. These issues include ambiguous agreements on timesharing that fail to outline the precise days and times that each parent has the children. Usually these agreements do not address important issues such as exchange location, right of first refusal, and any number of different issues affecting regular timesharing.
A good Parenting Plan clearly outlines the exact time that the children will spend with each parent for each holiday. Usually the parents choose to alternate holidays, with one parent having the children for a specific holiday on even/odd numbered years. Nevertheless, it is also important to clearly state the exact times that each parent will have the children for each holiday, to avoid potential issues if a once friendly relationship goes south. Moreover, it is important to distinguish which parent has the child for Christmas Eve vs. Christmas Day – to avoid future disagreements.
Who claims the child as a dependent for tax exemptions:
This is a major issue that is not addressed in most pro se Parenting Plans. For more information on this topic click here:
Agreeing to Lower Child Support Payments:
Child support payments are governed by New Mexico law, based on a number of different factors such as: (1) Each parent’s respective income and time with the child; (2) Insurance paid on behalf of the child; (3) Work related daycare expenses; and (4) Extraordinary expenses.
Despite the fact that child support is a formulaic calculation based on the factors above, for any manner of reasons, a number of pro se litigants agree to lower child support payments than they are entitled to under NM law, or fail to properly attach a child support worksheet to the order as required by law.