Pitfalls of Representing Yourself in a Divorce

Blog Family Law Blog

Riker Danzig Scherer Hyland & Perretti LLP

USA March 16 2017

It is common and often unfortunate that I meet with clients who decided, for whatever reason, that they would represent themselves during a divorce proceeding. There are cases where that decision may be perfectly acceptable. More often than not, the people I have met are coming to me because they are totally unsatisfied and/or unhappy with the deal they’ve made for themselves and are looking to an attorney to get them a better deal. Sometimes this is a possibility. However, when the ink is dry on that formal agreement, it makes things more complicated.

Our courts have weighed in regarding the enforceability and conscionability of an Agreement negotiated and reached by self-represented parties. The case in mind was formalized by husband’s attorney. Wife chose to remain self-represented during the negotiations and execution of the Agreement.

After husband made a post-divorce application in the trial court to enforce the Agreement, wife challenged its validity, claiming unconscionability, inequity, unfairness and that it was obtained through fraud. The trial court conducted a two-day hearing during which both parties and husband’s attorney testified. Thereafter, the trial court rejected wife’s arguments that the Agreement was invalid, unfair, inequitable and procured through fraud.

By now you may be asking, how can that be? If wife was self-represented, she may not have known the law and didn’t understand what she was signing. While a possibility, the testimony in this case revealed otherwise, opined the trial court judge. As an aside, if you’re going to represent yourself in court, on some level, it is incumbent upon you to learn the law and understand what it is you are negotiating and ultimately agreeing to.

The trial judge in this case found that while the Agreement waived formal discovery, that alone was not dispositive of wife’s claims. Also, while wife was self-represented, the judge found that she voluntarily agreed to waive her discovery rights and to bind herself to the terms of the Agreement. To that end, the judge found wife had been previously married and had drafted an Agreement in connection with the break-up of that marriage, and therefore she understood the significance of such Agreements. Also, the judge found that the parties had discussed the terms of the Agreement before it was executed in August 2005 – demonstrated by the prototype prepared by the parties and given to the husband’s attorney to formalize. The parties’ participated in a mediation session with regard to the division of marital assets. Wife also acknowledged and was aware of the Agreement’s terms when she received a check to her from husband marked “Separation Agreement.” In addition, wife negotiated an increase of husband’s support obligation to the tune of $2,000 more per month.

The trial judge also found that the Agreement was not grossly unfair, that the parties did not have grossly disproportionate bargaining power, and that the wife had sufficient time to reflect upon the terms of the Agreement.

The Appellate Court upheld the findings of the trial court and affirmed its decision. Lesson to be learned from this – be careful what you bargain for, especially without the advice of counsel.

Riker Danzig Scherer Hyland & Perretti LLP – Sandra C. Fava