It is common for divorcing spouses to negotiate and resolve between themselves claims relating to division of property, debts, payment of spousal maintenance and parenting schedules for their children. When parties are able to reach these agreements on their own, the Court offers standard forms that parties can complete themselves and submit to the Court for approval and to be included in a final Decree of Dissolution. Parties can simply go on line and download and complete a form of Decree of Dissolution without ever consulting with legal counsel.
This do-it-yourself approach has the definite advantage of avoiding legal fees and costs that would otherwise be incurred with an attorney. But the short term savings can often cost a spouse a significantly larger amount in the long run, both financially and emotionally. Entering into a legally binding document without fully understanding the implications of your agreements is just foolish. You wouldn’t agree to a surgical procedure without understanding all the associated risks, would you? Moreover, poorly drafted documents are nothing but breeding grounds for future expensive litigation and revived emotional conflict. This is why it makes sense to spend just a little time and money to allow an attorney to review and provide feedback about your draft written documents and to address any deficiencies in the documents before you sign.
I have many consultations with prospective clients after they have already signed their agreements and the Court has entered them in connection with a Decree of Dissolution. The most common reason they are seeking legal advice now is because they are no longer happy with their prior agreements and want to try to change them. It is a rare exception that once the Court has entered the Decree of Dissolution it will soon thereafter modify the terms of the Decree. In Arizona, at least relating to the division of property and debt, in the absence of something significant, for example, an act of fraud committed by a party, once the Decree is entered, the Court does not have jurisdiction to modify the provisions regarding the division of property and debt. With regard to custody and parenting time, the Court’s ability to modify terms is also subject to certain restrictions. For example, an Arizona Court is generally prohibited from modifying a decision-making or parenting time Decree for one (1) year after entry of such award unless a party can demonstrate that the child’s present environment may seriously endanger the child’s physical, mental, moral or emotional health. The benefits of having an attorney explain your legal rights so that you can make an informed decision before you are legally bound to an agreement should be obvious.
Another reason prospective clients seek guidance after their Decree is entered is because one party is not complying with the Decree and they want to enforce a provision. However, provisions in a Decree that are incomplete or ambiguous are difficult to enforce. A common example of an incomplete agreement is when parties agree that “Husband is awarded the residence and will pay to Wife $20,000 for her one-half interest.” While the amount of the buy-out is clear, the agreement lacks additional and important information regarding a date certain for Husband to pay Wife the amount due, imposing an obligation on Husband to remove Wife’s name from any existing lien, or the remedies if Husband fails to comply with these terms. Another example is when a Decree provides that the mother will have parenting time with the children every Mother’s Day. While there is no dispute that children spending Mother’s Day with their mother is appropriate, the problem is that such provision does not provide for a specific start or end time for Mother’s Day. Imagine if the mother believes Mother’s Day starts Sunday at 9:00 a.m. and continues until Monday drop off at school, but the father believes Mother’s Day is Sunday from 9:00 a.m. to 6:00 p.m. The lack of sufficient detail and guidance to the parents as to when this parenting time will occur will indeed give rise to future conflict, which is not good for parents or their children.
Having a knowledgeable and experienced attorney review your draft Decree of Dissolution with you, explain your legal rights, obligations, and the legal implications of whatever terms you are agreeing to, and making sure that your agreements are sufficiently detailed, is a prudent course of action. When should you do this? Before you sign the documents, of course!
About the Author:
Dana Levy (Member, Phoenix) is a certified family law specialist by the State Bar of Arizona. Her practice is concentrated in family law, including dissolution, post-dissolution, paternity, child custody and child support matters. She is a fellow of the American Academy of Matrimonial Lawyers. Please contact Ms. Levy in our Phoenix office at 602-285-5082 and visit her bio here.