My soon-to-be Ex and I are Friendly: Do I Really Need a Divorce Lawyer?

AvatarCasey Florance, Principal

With the proliferation of online resources, and the ongoing pandemic, it is both more tempting and more possible than ever to craft your own Settlement Agreement from the comfort of your living room.

Online “forms” abound, and services like Legal Zoom can help you feel like the “do-it-yourself” (DIY) agreement is tailored to your particular situation. As a result, divorce lawyers frequently get asked: Do I really need a lawyer?

Although it is hard to advise people how to avoid needing my services, I typically tell potential clients that the answer really depends on the circumstances of their case and level of complexity of their custody and/or financial situation, as well as the dynamic between them and their soon-to-be Ex. There are a lot of resources and dispute resolution processes available to the self-represented person (read: divorcing person who does not have an attorney), but there are also many pitfalls.

Regardless of the chosen path and circumstances of the case, however, one thing I always tell anyone who will listen is this: you absolutely must meet with an attorney to review any Settlement Agreement BEFORE you sign it. Here’s why.

  1. It is important to be certain that the language of your Agreement actually sets forth the terms you have agreed upon.

    Just because you and your spouse/co-parent are comfortable negotiating directly and coming to agreed-upon resolutions for the issues arising out of your relationship, does not mean you are comfortable translating those agreed-upon concepts into written agreement terms.

    If your goal is to avoid Court and costly litigation while making your own decisions about your family, then your DIY Settlement Agreement will not serve its intended purpose if you have to spend money later litigating over what your agreement was supposed to say, or worse, seeking the Court’s interpretation of your agreement because you two have a dispute about what your agreement means. It is also important for you to understand your agreement so you know what you need to do once it is signed in order to comply with it moving forward.

  2. You don’t know what you don’t know.

    Many online tools for drafting DIY Settlement Agreements contain a series of options you self-select based on the categories listed. But more often than not, there are details about your custodial situation — or your finances, assets or debts — that are not represented in these pre-drafted menus. Or the options do not adequately capture your specific situation.

    The danger here is that once you sign an Agreement, you may have waived rights you didn’t even realize you had. Furthermore, by neglecting to include entire topic areas in your Agreement, you may have accidentally waived your ability to later address those topics.

  3. There is very likely “boiler plate” language embedded in the form agreement that makes certain provisions unable to be modified for any reason.

    In Maryland, there are often sections of a Settlement Agreement that are unable to be modified by a Court once the agreement is signed by both parties. For example, it is typical for agreements to state that the division of assets cannot be modified by the Court at any point in the future.

    It is also not unusual for time-bound alimony payments to be non-modifiable. As a result, it is extremely important to understand which provisions of your Settlement Agreement are able to be modified in the future, and which ones are not. Failure to understand your agreement – when you had the opportunity to review and understand it before signing it – is an unlikely basis for undoing your Agreement later if you are unhappy with it. And signing an Agreement which says that certain provisions are not able to be changed by the Court may leave you with little recourse.

  4. Ensure that the Agreement meets your goals.

    If you have attended mediation with a third-party neutral and the mediator drafted your Agreement, it remains important to have it reviewed by your own attorney before you sign it. You will want to ensure that the agreement meets your individual goals. Just as important, you want to make sure you actually understand each and every provision of your agreement. Many people don’t realize that a mediator does not represent either party’s interests and cannot provide legal advice; rather the mediator’s goal is to facilitate a resolution.

I recommend anyone going through a divorce to have an attorney guiding them through the process, explaining rights and obligations, strategizing to reach goals, and advocating for their interests. For many people, this option is not feasible for a variety of reasons. When that’s the case, it is nevertheless imperative to meet with an attorney to review your draft Settlement Agreement before you sign it.

Facebook and Divorce: Can You Delete Your Account?

AvatarCasey Florance, Principal

Social media accounts, including Facebook, have become an almost universal way for people to stay connected with friends and family, to share updates about their lives, and to catch up on news and events.

According to a 2019 Pew Research Center survey, around seven in 10 – or 69% – of adults in the United States use Facebook. Platforms like Facebook can help foster a sense of community and social engagement – especially during stay-at-home orders due to the COVID-19 pandemic. But people also have a tendency to overshare, or to share an inaccurate version of themselves or their lives – only putting their BEST foot forward online. 

If you are considering separation or divorce, it is important to understand what your obligations are regarding any online content you have generated on Facebook, and how those obligations might impact you during the divorce process. Your online footprint (as well as your spouse’s) can be a helpful tool in your divorce case, or it could be used against you. Either way, you will want to have developed a clear strategy with your attorney regarding your Facebook content.

Here are a few simple rules that I would want any potential client to keep in mind:  

Rule #1: Do not hit delete. Your Facebook page, and any content, posts, messages, or anything else you have posted or shared on Facebook, may all be relevant and discoverable information during your divorce process (meaning, the other side may request this information through discovery and if so, you have an obligation to provide it). In Maryland, a party to litigation has an obligation to preserve relevant evidence, not just once litigation has begun but as soon as it seems that litigation might occur. To steer clear of possible credibility issues later in your case – or worse, sanctions for destroying relevant evidence – the best practice is to keep all social media information in tact from the moment you begin considering divorce. This does not mean you have to continue posting or creating new content, but if you do so, then you should save that as well. 

Rule #2: Never put anything in writing you wouldn’t want a Judge to read one day. This includes any posting on social media (whether made “publicly” or “privately”), as well as “private” or “direct” communications with third parties through the messenger features of any social media platform. 

Rule #3: Preserve everything that may be relevant to your divorce.  Although this seems synonymous with the rule about not affirmatively deleting anything, the obligation to preserve relevant evidence actually extends beyond what you yourself control.  You also have an obligation to let employers, friends, family members, business partners, or anyone else who may have documents in their possession that are relevant to your divorce that they have an obligation to preserve and maintain those documents. Similar to your own obligation, this also includes online data, such as social media posts and messages.

Rule #4: Talk to your attorney before you take any action.  The obligation to preserve relevant information does not necessarily mean that such information must remain “public” on your Facebook page.  Under certain circumstances, you may even be able to delete information off of Facebook, or even your entire account, so long as you maintain copies of everything that was once available.

Earlier this year, Facebook announced a new feature that enables “bulk” deleting of posts from a user’s page, making it easier than ever for people to run afoul of preservation requirements. It is always advisable to discuss with your attorney before you take any action, particularly since the sanctions for destroying relevant evidence can be severe. Working closely with your attorney to understand what your obligations are while also developing a strategy to address your concerns, will put you in the best position to be successful in your divorce matter.