Do-It Yourself Divorce: Stay Away

Posted by Daniel Clement on August 20, 2008

Shannon Cavers in The Houston Texas Divorce and Family Law Blog details her observations of a litigant who retained one of the so-called “do-it yourself” divorce services to secure a divorce and then encountered problems.

These services routinely advertise over the internet about how they are the supposed low cost alternatives to a divorce lawyer. Typically, these services prepare the divorce papers so the litigant can appear “pro se” (without legal representation) and file the papers in court as an accommodation.

I have long wondered why these services are not prosecuted for the unauthorized practice of law. Although these services claim to be nothing more than “form preparers,” in reality, they do all of the legal and clerical work in connection with the divorce. In every sense, they function as divorce law firms, though there may be no lawyer on staff. I even wonder if the operators have paralegal training.

My concern is that “clients” or customers of these firms are at risk. Unlike lawyers, who are trained in the law and who’s legal and ethical conduct is regulated by the courts, these services operate without standards or oversight. My guess is that they do not even have liability coverage for when they make mistakes.

There is no substitute for competent legal representation, who is retained to protect your rights and interests. A skilled matrimonial lawyer knows not only the black letter of the law, but its nuances as well.

If you opt do-it-yourself, but require help, the courts have “pro se” offices to assist unrepresented litigants, the divorce forms and instructions are online and many of the local Bar Associations offer clinics. Avail yourself of this help.
 

Health Insurance: A Consideration in Divorce

Posted by Daniel Clement on August 14, 2008

The New York Times ran a front page story detailing how the availability of medical insurance has become a major consideration in the decision to divorce or to wed.

In a poll conducted this spring by the Kaiser Family Foundation, a health policy research group, 7 percent of adults said someone in their household had married in the past year to gain access to insurance. The foundation cautions that the number should not be taken literally, but rather as an intriguing indicator that some Americans “are making major life decisions on the basis of health care concerns.”

The issue of medical coverage has long been a consideration in divorce. In fact, many couples, after negotiating their settlement agreements, delay seeking an immediate divorce and, instead, opt to divorce on the basis of their living separate and apart for a year pursuant to a written separation agreement. The one year separation allows a party who would otherwise be without access to medical insurance to remain eligible for medical coverage on the basis of the marriage. Some couples put off the divorce for even more than a year for this very reason.

Amplifying this consideration, New York requires parties to acknowledge that they are aware that they will no longer be allowed to receive health coverage under their former spouse's health insurance plan once the divorce is granted.

Following the divorce the parties may be eligible to continue medical coverage under COBRA (which can be prohibitively expensive) or purchase insurance on their own
 

 

The Preliminary Conference: What Is It?

Posted by Daniel Clement on August 07, 2008
A preliminary conference will be, for most, the first, if not the only court appearance in a contested divorce in New York.

I like to think of the preliminary conference as the first opportunity to formally eliminate and identify issues in the case. Once the issues in dispute are identified, the timeline is set for their final resolution at trial.

Like all court appearances in a matrimonial action, the parties and their attorneys must appear in court.  At the conference, the parties sign a binding agreement (a " Preliminary Conference Order") detailing  what issues (marital fault [grounds], equitable distribution, maintenance, child custody, support and visitation)are in dispute.   If, for instance, the grounds for divorce are unresolved, the court will immediately schedule a grounds trial.

If grounds are not in dispute (both parties agree that there will be a divorce upon some ground), the preliminary conference order will address discovery for those issue which are unresolved. For example, the order will provide for the exchange of financial documents and may address the appointment of necessary experts to value property, businesses, professional licenses, degrees and pensions, etc. The order may also address how the experts will be paid.

If there are issues involving children, the court may appoint a law guardian for the children and may also order a forensic examination.

This conference gives judge his first taste of the case. At the conference, the judge will be able to meet and assess the parties and informally judge the merits of the case. The Court will also be able to address any immediate issues like temporary maintenance, child support or anything else that may require the judicial resolution.

As I said at the outset, for many, the preliminary conference will be their only court appearance in the divorce. Many cases are resolved at the preliminary conference. Most contested divorces settle some time after the preliminary conference during the discovery phase of the divorce.