I created this guide for people who are considering handling the divorce process alone. While it may seem like the most practical and money saving choice for you right now, that will only be true after you successfully avoid all the mistakes you’ll read about here.
Failing to avoid the 12 mistakes most people make can…
- Cost you money in the long run if you lose rights to your assets or end up being responsible for debts that are not your own.
- Run you ragged by prolonging your separation with custody battles or other long delays due to mistakes made during the filing process.
- Deprive you of your rights to your property, income and children when missed deadlines or failing to follow procedures correctly leads the court to make the decisions for you…even when it’s not what you wanted.
There is a LOT to know about filing for divorce and this guide is only a small portion of what you MUST LEARN. That’s why you’ll see links to additional resources throughout the guide.
Please take advantage of the additional materials and education we offer at www.arizonalawgroup.com
We look forward to partnering with you during this difficult time. Whether as a resource for education or as the attorney you choose to hire, we are committed to ensuring you protect and retain all the legal, financial and familial rights that are now and should continue to be YOURS.
Signing Documents Before Completely Understanding What They Mean
Consequence: You might sign away your rights without even knowing it!
Solution: Know precisely what you are about to sign before you sign it!
When you represent yourself, it is crucial that you completely understand every piece of paper presented to you in your divorce. Before you sign anything, you MUST know what the document is supposed to do, what the document really says (not just what someone tells you it says), and what will happen to you as a result.
With all the paperwork involved, you will be tempted to just skim over the words. READ EVERY DOCUMENT CAREFULLY! You may think that the document provides for one thing, but the way it is written may say something else entirely and have undesirable legal results.
You need to understand that everything you sign in your divorce becomes legally binding. You are expected to have a full knowledge of everything that is written on every piece of paper. Everything you come to an agreement on must be put in writing. Verbal agreements are not legally binding. Get everything in writing! Then, read every paper you are asked to sign and make sure the agreement is written in a way that accurately represents what you have agreed to accept.
Caution! Be prepared for pressure tactics by the other people involved to get you to sign documents in a hurry. Remember, when emotions run high, it is very common for decisions to be made improperly and too quickly. Be thoughtful and always take the time you need to understand what you are about to sign. Do you agree with what the document says? How does it affect your legal rights? If you don’t agree, then DO NOT SIGN OFF until the changes you need made are completed.
Assuming Fill-in-the-Blank Separation Agreements Meet Your Specific Needs
Consequence: Falling victim to unexpected financial consequences.
Solution: Use generic fill-in-the-blank separation agreements only as an outline. Carefully and clearly tailor your separation agreement to meet your needs and the needs of your children.
A well-written separation agreement will include every detail of your settlement with the other party. The way you agree to divide up your possessions and your debts, arrangements for child custody, payments for child support, and additional spousal maintenance payments, should all be spelled out in the separation agreement.
The “one size fits all” generic forms are not specific enough to thoroughly protect everyone involved from hidden financial consequences in a divorce. And remember – once both parties have signed the agreement, both parties are legally obligated to follow everything written in it.
For example, what if your separation agreement leaves out specific language that would prevent one party from being forgiven from remaining debts in a future bankruptcy proceeding? There is a chance that bankruptcy could discharge the party from that obligation (forgive them of the debt) altogether. Very specific language should also be used for details concerning how to divide up ownership of the marital residence. If one party must refinance the home individually, so that they can remove the other person’s name from the mortgage, then specific deadlines need to be written into the separation agreement. Consequences for failing to follow the court’s orders need to be written into the separation agreement as well.
In other words, be very clear about what you need. Include all of the details.
Failing to Use Proper Court Procedures to Write Requests of the Court
Consequence: Not getting want you want.
Solution: Rules are rules. Follow proper court procedures.
All too often, when you choose do-it-yourself divorce you are under the false belief that all you have to do is wait for your day in court to “tell it like it is” directly to the judge. To tell you the truth, that is not how the court system works! The family court will not listen to any evidence on an issue that was not properly brought before it.
You need to know all the rules about all the procedures that everyone involved is required to follow in court. The Arizona Rules of Family Law Procedure are very clear about proper pleading – that is, how to bring an issue before the judge. The rules of the court are there, in part, to provide a fair and even playing field.
In order to be fair to both parties, someone representing themselves in a divorce should be expected to follow the same rules as an attorney and present their requests in the proper form. If you fail to follow the rules when you make a request of the court (or “motion” the court) you can cause long delays and risk having your request thrown out or ignored.
Motions Used in Family Law Practice. Motions are the formal written requests you (the movant) make and file with the court. In general, all motions must be properly served (delivered) on the other party so that he or she can respond. (Ex parte motions – motions granted for the benefit of one party only – are the exception and not the rule.)
Every motion has a specific purpose and a specific desired result. It is improper to ask the court for an order without filing a motion and proposed order. Neglecting to serve the motion on the other party along with the proposed order is also improper.
Here are some of the more routine motions involving children’s issues:
- Motion for Temporary Orders. Used to request that the court order pre-trial interim orders (temporary orders of the court while waiting for a hearing) custody and parenting time, child support, spousal maintenance, debt payment, and the like.
- Motion for Post-Decree Temporary Orders. Used to request that the court order temporary custody or parenting time following a previous custody determination.
- Motion for Mediation. Used to request that the court order mediation of child custody and access disputes.
- Motion for Custody Evaluation. Used to request that the court order an evaluation from a child custody evaluator.
- Motion for Parenting Conference. Used to request that the court order a parenting conference with a court-appointed provider.
- Motion for Reconsideration. Used to request that the court reconsider a ruling in the case.
If there is something that you or the other party wants the court to order, then look up the proper form of motion for the precise request.
Not Getting an Independent Legal Opinion – Especially If You Are a Victim of Domestic Violence
Consequence: Being manipulated into giving up your rights.
Solution: A family law attorney can be your most valuable asset in a divorce – seek an independent legal opinion about how to protect your legal rights.
As mentioned earlier, the court assumes and expects a person who represents themselves in a divorce to have all the legal knowledge and experience of a licensed attorney. Unfortunately, you may fall victim to physical, emotional, or verbal abuse by the other party. If you are a victim of abuse who has chosen to proceed through a divorce without an attorney, you may face threats of violence, intimidation, and extreme pressure from the other party to get you to “agree” to their terms.
No matter what your gender, you need to be educated about your rights in the family law court system. Knowing your rights gives you a better opportunity to make well-informed decisions before you agree to settle the case. When you are being manipulated or threatened by an abusive spouse, you may not be fully aware of all the important factors in the divorce. Learn what your legal rights are and don’t let the other party intimidate or threaten you into making decisions you are not ready to make.
There is relief available to victims of domestic violence through the court. It is important for you to get an independent legal opinion from an attorney about your legal rights in the divorce – especially if you are the victim of domestic violence.
Failing to Prepare a Clear and Concise Parenting Plan
Consequence: Not receiving the custody rights you had anticipated were yours.
Solution: Submit a well-devised parenting plan that is as specific as possible.
As a parent, when you seek joint custody of your child, the law requires you to submit a comprehensive, written parenting plan to the court. Just like the generic separation agreements, the “one-size-fits-all” forms for parenting plans are useful only as an outline. They are vague and use generic language such as “parenting time is as agreed upon” or “parents to share holidays.” These undefined terms leave too much room for interpretation. Not only that, but these generic forms don’t say anything about your child’s extracurricular activities, summer vacation schedules, out-of-state travel, and so on.
At a minimum under A.R.S. 25-403.02(A), Arizona requires that the following provisions be included in any parenting plan that the parties propose:
- Each parent’s rights and responsibilities for the personal care of the child and for decisions in areas such as education, health care, and religious training.
- A schedule of the physical residence of the child, including holidays and school vacations.
- A procedure by which proposed changes, disputes and alleged breaches may be mediated or resolved, which may include the use of conciliation services or private counseling.
- A procedure for periodic review of the plan’s terms by the parents.
- A statement that the parties understand that joint custody does not necessarily mean equal parenting time.
If you are not able to come to an agreement with the other party regarding any part of the plan, then the court will step in and decide for you. The family law judge may also look at other factors that could improve the child’s “emotional and physical health.”
You should try to picture everything that could possibly happen (within reason) in your child’s life and then plan how you propose dealing with each of those circumstances. By doing this, you will lessen the likelihood of the judge making the parenting decision for you.
Being Unprepared for a Child Custody Evaluation
Consequence: Losing control of your child custody choices and/or spending THOU$AND$ on a child custody evaluation.
Solution: A custody evaluation is a vital part of any custody dispute. Gather the documents and evidence you need to support your position on child custody and be fully prepared for the evaluator’s interviews.
If child custody is an issue in your divorce case, either you or the other party may ask for an expert evaluation by a child custody evaluator, usually a psychologist. If you and the other party can’t come to an agreement on the legal or physical custody of your children, the court will most likely grant this motion.
The custody evaluation process takes several months and can cost thousands of dollars. The custody evaluator will interview you and the other parent in detail and observe how each of you interacts with your child. The evaluator will also interview other family members and review any records pertaining to your child. The evaluator’s report will be very detailed and include recommendations for custody, parenting time, and which parent is designated as the child’s primary residence. It is vital for you take the expert evaluation seriously. If your divorce goes to trial, the expert’s evaluation on your custody issues has tremendous influence with the family law judge.
In addition to the evaluation, Arizona’s “Parent Education Course” is mandatory in all cases in which the court is asked to determine matters of child custody, visitation, and child support. Furthermore, the court has discretion to order parental participation in the program in other cases, too, including a modification or enforcement of child support, custody or visitation.
Missing Important Filing Deadlines
Consequence: The court may make important decisions for you—without your input—with which you must comply.
Solution: Always calendar and keep important dates and deadlines in your divorce.
Remember! You will be expected to meet the court’s deadlines in your divorce case just the same as if you were an attorney. Every ordinary court procedure has at least three important dates associated with it:
- The date one party may act
- The date the other may respond
- The date the court makes its decision
All court cases are time-sensitive. Your failure to meet any of these deadlines can create severely negative consequences such as having the family law judge make important decisions about your future and the future of your children without hearing your position on the matter. The judge may issue orders against you regarding:
- Child support
- Spousal maintenance payments (alimony)
- Child custody
- Property division
- Payment of the other party’s attorneys’ fees
Expect changes in scheduling and keep careful track of the court’s calendar. There will be periods of time when it seems like nothing is happening with your family law case. There will be delays, sometimes one right after the other. Judges are busy. They will have conflicts that require rescheduling, and so will the other attorney. But stay alert because, just when you think things are never going to get rolling, a series of proceedings will come up, one on top of another. The important thing is that you NEVER MISS THE DATES on which you are required to provide information, file, respond, or appear in court.
Improperly Serving Court Papers on the Other Party
Consequence: Being unable to force compliance on your spouse because YOU didn’t serve the papers correctly.
Solution: “Service” is legal notice to the opposing party that papers have been filed in court which may affect that person’s rights and interests. Always follow proper procedures for serving papers on the other party.
When you file the petition for dissolution of marriage (the first paper you file in a divorce case – also know as the “divorce papers”) with the Superior Court Clerk, the summons and court papers must be served on the other party. This is referred to as “service of process” and it is essential that this be carried out properly – improper service means pretty much the same thing as no legal notice at all.
Once you have filed the divorce papers, you will be motioning the court for orders. The documents and pleadings (the legal rights you are claiming against the other person) associated with your request must be served properly and within a reasonable amount of time to the opposing party.
Depending on the issue being addressed, service may require a process server or require service by mail. The court cannot issue orders on your motion until the opposing party is served. If you fail to properly serve the opposing party, you have wasted your time, effort, and money.
Pay attention! Proper service is a necessary part of your case and it is vital that it be done properly.
Failing to Assign Proper Value to Your Property and Debts
Consequence: Receiving LESS THAN YOUR FAIR SHARE of money, property and spousal maintenance than you have rights to receive.
Solution: In a divorce, all marital assets and debts must be equitably divided between you and the other party. A proper valuation of every asset is necessary for a fair and equal division.
The division of community property (property and profits received by a husband and wife during a marriage) has long-range consequences for both you and the other party. Placing accurate values on your marital assets and debts can help this division affect your financial future in a positive way.
You can assign accurate values on these debts and assets by agreement with the other party, but if you can’t come to an agreement, the asset’s value must be proven to the court.
Undervaluing an Asset. If an asset is undervalued, the spouse who surrenders all interest in the property will receive half the stated value of that asset, and not half of the true market value.
Assume, for example, that your Mercedes is actually worth $30,000, but is undervalued at $20,000. If you are the spouse who surrenders the car, you will get $10,000 – half of the stated value. The other party who keeps the car also gets half of the stated value, plus the benefit of the true market value (or $20,000 total.) Obviously, this is not a fair and equal division of assets.
Overvaluing an Asset. If an asset is overvalued and you keep the property, you will get half of the stated value. The other party will receive half the stated value, which is inflated and more than the actual value.
Assume that your Mercedes has a true market value of $30,000, but you overvalue it at $50,000, the other party will receive $25,000. You will end up paying the other party more than eighty percent of the true market value of the car! Be smart and consider getting a professional appraisal for any complex or valuable properties so that you can make sure you receive fair and equal division of your assets.
Business Valuation of a Commercial Enterprise. If you own your own business or have an ownership interest in a business, the enterprise may be a marital asset that is subject to equal division in the divorce. The value placed on this commercial asset can have a dramatic impact on the settlement of the divorce, division of assets and debts, and payment of spousal maintenance.
Because of the time and money involved in getting a professional appraisal on your commercial enterprises, you will be tempted to just speculate on the value of your business assets.
Beware! There is more to estimating the value of your business than just the price of the business itself. There may be serious debt and tax liability issues that must be brought to light and figured into the valuation as well. Use the expert services of a business valuator, typically a forensic accountant, to appraise your commercial enterprise. There are several approved valuation methods that may be used to accurately estimate your business interests. A qualified business evaluator will be able to choose the valuation method that works best for you.
Neglecting to Ask for an Order for Life Insurance to Guarantee Support Payments
Consequence: Begin left without vital income if your ex-spouse dies prematurely.
Solution: The proceeds from life insurance can ensure that you continue to receive child support and spousal maintenance payments in the event the obligor (the person obligated to pay you) dies prematurely.
If the parent who is obligated to pay support should pass away, then the other parent could face a very serious financial crisis – the immediate end to child support and, quite often, an end to spousal support as well.
As part of the divorce settlement, you can request that the person required to pay support also be required to maintain a life insurance policy to ensure that payments continue even after tragedy strikes. If you are awarded spousal maintenance, the life insurance policy will name you as the irrevocable beneficiary (you get the benefits and no one can change it). For purposes of child support, the children are named as the irrevocable beneficiaries on the policy.
When the obligor is required to maintain life insurance for the benefit of the children or the former spouse (you), then any failure to maintain that coverage would violate the court’s order. If you receive support from your former spouse, you might worry that the policy will lapse or that the beneficiary will be changed without your knowledge or consent. If you have those concerns, and you want to ensure that the policy remains in effect for you or your children’s benefit, then consider arranging to pay the premiums yourself.
Forgetting to Protect Separate Property You Owned Before Your Marriage
Consequence: Losing rights to what was once your separate property.
Solution: When an asset is designated as separate property belonging to one spouse, it will not be divided in a divorce. Gather evidence to prove your rights to your separate assets.
In Arizona, it is assumed that the assets and debts acquired during your marriage are community property, unless you can prove otherwise. You and your spouse each own an undivided one-half interest in those marital assets and you are equally liable for the marital debts. The community property must be divided when the marriage is dissolved. You may have separate property that belonged to you before you were married. However, if that separate property is never identified as a non-marital asset, then it could be included in the division of marital property.
Generally, property you owned before the marriage would not be considered a marital asset. But matters are seldom that simple when allocating assets in a divorce. How the property was maintained and taken care of during the marriage can make a huge change in the way the property is looked at during the divorce. Depending on the circumstances, what was once separate property may be included as community property through transmutation (to convert or transform the type of ownership).
And another thing …if you own a separate asset that has appreciated during the marriage, the increase in value could be considered community property. The laws controlling the way assets are divided up in a divorce can be very complicated. Think about getting independent legal advice on specific separate and community properties. That way you can avoid prematurely giving up an interest in any valuable asset.
Not Asking for a Split of Retirement Benefits and Pensions
Consequence: Being BLOCKED from accessing funds that should be yours because you filed your own “QDRO” or didn’t file one at all.
Solution: Deferred compensation (payment of money withheld until a certain time) in the form of a qualified pension, 401k, or IRA, funded during the marriage, is a community asset divisible in divorce. The Qualified Domestic Relations Order (QDRO) from the court is necessary to carry out the split of retirement benefits and pensions. File one and file it properly.
There are a number of different accounts or pensions that may require a QDRO (the courts order to a plan administrator) to divide the account after a divorce is finalized, including:
- Retirement accounts
- Investment accounts
- Military retirement
- Pension/retirement investment accounts
The account or plan administrator can’t divide the pension between the two parties without a QDRO. It’s a really good idea for you to get the QDRO written up early on during the divorce proceedings and turn it in at the same time as the final decree for the court’s signature.
The QDRO may be included in your property settlement, incorporated into the court’s decree, or issued as a separate order. The divorce decree will establish the respective interests of you and your former spouse in each pension, but the QDRO is necessary to carry out the division.
The QDRO is a very detailed, legally specific document that should be drafted by a qualified legal expert practicing in this area of law. It is not a good idea to try to write up your own QDRO. We also strongly advise against using any free online QDRO forms for any other purpose except to use as an example. The cost of a mistake on your financial future is too high to risk the misuse of this complex instrument.
Attorneys who prepare QDROs are specialists – they stay informed about the constantly changing rules, regulations, and statutes affecting the division of retirement plans and pensions.