Approximately 70-80% of people reach divorce and custody agreements without an attorney.  Often this is because they are amicable and wanting to get along. Other times it is purely because of a lack of resources to pay for legal services.  Despite this, there are often problems that arise after these agreements, which can rise to the level and need of retaining an attorney to “fix” what was originally agreed to.  Below is a list of 5 common pitfalls we see in divorce and custody agreements that are drafted without an attorney. 

  1. Tax Agreements. Sometimes we see rather than alternating claiming a child annually for tax purposes, parties will agree to something outside of the norm.  For example, parties will agree that one person claims the child annually and they will split all refunds. Unfortunately, there are too many games that can be played with tax refunds.  The person getting the “refund” could take out less tax than usual from his or her pay. This results in them receiving more money in their paycheck rather than splitting a larger refund as intended by the parties.  It is best not rely on splitting tax refunds after the divorce is finalized. This typically results in future problems.
  2. Agreements Regarding Real Estate. Often we see agreements regarding real estate that do not include all the issues that could arise.  For example, we will see the person who keeps the house refinance the home to take the other person off. There are many questions that are not answered and can be difficult to get changed by the court once the agreement is made.  How long does the person have to refinance the home?  What happens if he or she is unable to refinance?  Which realtor do you use? What repairs do you agree need to be made to the house?  Who pays for the repairs?  What if the person keeping the house doesn’t make the mortgage payment?  How much will the house be listed for?  Who pays for refinance costs or closing costs? 
  3. Agreement Regarding Retirement Accounts.  We sometimes see parties agreeing to divide up a retirement account equally, but then failing to explain how it gets divided.  Can it be done by a QDRO which will avoid tax consequences?  Who pays for the QDRO?  How long does that party have to initiate the process of the QDRO?  On what date does the value of the retirement account get divided?  There are many issues to consider when dividing a retirement account that can be forgotten in an agreement entered by parties without an attorney.
  4. Holiday Parenting Schedules.  One of the most litigated issues is regarding holiday parenting time.  Parents often believe they can make arrangements that are in the best interest of the child, but fail to take in to consideration how radically both their lives will change, typically within a few short years after their relationship is dissolved.  Stepparents come into the picture, new family structures, events, traditions, relocation, etc.  We believe it is the best practice to put as much detail regarding holiday parenting time as possible. This can be the “default” if the parties cannot reach an agreement regarding holidays.  There is nothing that says you must follow the agreement. If you and your ex agree to something that is better for the kids during that particular holiday that is great, but having a very detailed holiday agreement will resolve any issues that my surface.
  5. Transportation Agreements for the children.  Often, in an attempt to get things “done,” a party will reach an agreement that he or she will do all the transportation of the children. This is usually because the parties live 5 minutes apart and it is not a big deal. However, parents end up moving apart from each other. These types of agreements (or lack thereof) can substantially affect a parent’s day-to-day life in ways that were not imaginable to him or her at the time of reaching the agreement.  It is typically a good idea to enter a detailed agreement regarding transportation that is fair for all parties. 

Although you may be getting along with your soon-to-be ex, it may make sense to have an attorney review an agreement you have reached before signing it and filing it with the court.  At Hulse Law Firm, we help people out on an unbundled basis to review and draft agreements.  Avoiding pitfalls can save you time, money, and unanticipated heartache in the future.  For a free consultation, please call 720-773-2900.