MORE ANECDOTAL EVIDENCE ON PRO SE PROBLEMS
September 15, 2010 § Leave a comment
In the past week, I have three pro se divorces presented to me that illustrate some of the problems that people can create for themselves when they undertake to represent themselves.
Case 1. A fairly standard no-fault divorce with no children, no joint debts, no joint property. Husband gets the homestead that he owned before the marriage, and will pay wife for her marital equity. The wrinkle is in a paragraph that provides that the parties will divide the husband’s “retirement annuity,” and allocating the tax liability between them. When I asked the husband how he expected to accomplish it without a QDRO, he replied, to my surprise, that the plan administrator had already disbursed the money to the parties, and that his accountant had told him he could avoid the 10% penalty by addressing it in the property settlement agreement. The agreement did include the phrase “Qualified domestic order,” but did not include any of the ingredients required to constitute a true QDRO within the meaning of the law. I have no idea how the IRS will treat the parties’ home-made paperwork, but if they end up having to pay the 10% penalty, I would bet both of the following will be true: (1) Both parties will be unhappy; and (2) It would have cost a lot less to hire an attorney to ensure that it was either done right or the liability shifted to the attorney.
Case 2. Property settlement agreement with no provision for custody at all, although a child is identified. When I asked why there was no custody provision, the response was that the child is 18 and in college, and there does not need to be a custody arrangement, a statement with which I disagreed. When I asked about the lack of any support provision, the response was that there was no need for support because the child is in college, another statement with which I disagreed, especially based on my own personal experience. I did not bother to read the rest of the agreement, but if the property division was as incomplete as the child custody and support provisions were, I doubt it would have been “adequate and sufficient.”
Case 3. A well-dressed young couple approached the bench. Dad is holding a 2-year-old child, whom he is feeding with a baby bottle. I find three shortcomings in the agreement. First, although they agree to joint legal custody, there is no tie-breaker; you can’t have a committee of two, so who will have final decision-making authority? Second, the agreement states that “both parties shall claim the children as tax exemptions.” How will that work? Do they mean that both claim both children in the same year, or that the exemptions will be divided between them somehow? Sounds like another trip back to court to me. And third, there is no provision for child support for the two children, ages 2 and 4. When I ask mom about it, she says “I am not asking for any support.” Well, I can’t approve it no matter what you want because I have to watch out for the children. The husband proposed that the 3 of us should sit down and I could point out ways to fix their paperwork, but I demurred on the basis that I am prohibited from giving them legal advice, and even if I could, I could not advise both of them in the same case because of their competing interests.
Neither of the cases with children had UCCJEA affidavits.
I previously posted on the problems of pro se litigation here.