Can you trust your spouse in your divorce? In some cases, the answer is an obvious "no." Your spouse has proven untrustworthy during the marriage; that may even be the reason for the breakdown of your marriage. But in other situations, the divorce seems amicable. Both of you understand the need for the divorce, and while it's sad, you wish each other well. You just want to end your marriage and divide your assets with a minimum of stress and expense.
There's nothing wrong with an amicable divorce! For many reasons, especially if you'll be co-parenting together afterward, it's a good thing. But there is a difference between being cordial and cooperative and assuming your spouse has your best interests at heart.
There are certainly spouses who deliberately act friendly and agreeable during a divorce in order to get their spouse to let their guard down—then they take advantage, getting their trusting spouse to give them a more favorable settlement.
More often, however, people genuinely have good intentions, but those intentions don't bear fruit for the other spouse. Here's a common scenario: a couple realizes they need to divorce. They are not at each other's throats, and they agree they want to keep things as simple and civil as possible. They decide that only one of them will hire an attorney, to save money. After all, why pay two lawyers when they pretty much agree on everything?
So one spouse trucks off to a divorce attorney, who draws up a settlement agreement for both spouses to sign. The lawyer asks some questions about his client's preferences; the client answers. The client takes the agreement back to the other spouse, who signs it. This agreement ultimately forms the substance of their divorce decree. Sounds great, right?
Maybe—but maybe not. The agreement may embody, in broad strokes, the agreement of the parties. But the devil, as they say, is in the details. The agreement was drawn up by an attorney whose job is to represent his client and his client's best interests. The attorney may not be trying to act against your interests, but in practice that may be what happens.
Let's say that you and your spouse agree to split your personal property equally and to each keep your own retirement accounts. But your spouse's attorney advises them that certain property is likely to appreciate in value, and certain other property carries a tax burden. Furthermore, your spouse accumulated a lot more in their retirement account during the marriage. The attorney may counsel your spouse to claim certain property, and not to mention that the funds that went in your retirement accounts during the marriage are marital property subject to division in divorce. You might end up with an agreement that, while it is not exactly contrary to what you discussed, serves your ex-spouse's interests better than yours.
Is there a way to keep your divorce amicable, protect your rights, and avoid spending unnecessary money on legal fees? Actually, there are a couple of ways.
One way is through mediation. In family mediation, you and your spouse meet together with a mediator, a neutral party who will guide you through the process of agreeing on the details of your divorce without representing either one of you; the mediator is there to facilitate agreement between you.
Minnesota also allows divorce attorneys to offer unbundled services, also known as limited-scope representation. In other words, rather than representing you in every aspect of your divorce, an attorney can perform only those distinct tasks that you need, allowing you to handle the rest. For instance, if you and your spouse have reached an agreement on the terms of your divorce, an attorney can draw up the agreement for you, or review an agreement that your spouse has had prepared, making sure it contains everything it needs to and that you fully understand everything you are agreeing to before you sign it.
If you have questions about mediation or limited-scope representation, please contact Mundahl Law to schedule a consultation. We look forward to working with you—in whatever capacity you need.