If you and your spouse are able to settle the assets of your marriage on your own, you each will save quite a bit in legal fees, especially because if you’re not able to you’ll each need your own lawyer. It is unethical for one lawyer to represent both of you, but once you do settle on terms, you would need only one lawyer to prepare the agreement.
Many folks think that things should be divided 50-50, and while it’s legal to settle this way, if a judge were called on in a contested divorce preference would be given to the side worse off financially. Another consideration is that the person who wants the divorce the most may have to give more up to have the other person agree to not contest the divorce. There have been many cases wherein one spouse is willing to let the other have virtually everything in exchange for marital freedom. There are even more cases where the parties have been separated so long that they no longer own anything together.
In cases where lawyers are retained to get the best possible settlement, divorces can take years and legal fees can quickly reduce the total value of the marital assets. Some lawyers push their clients to do exactly that. Sometimes it is to the benefit of the client…and sometimes not. But it always benefits the lawyers.
Most people in a divorce are of modest means and the cost of fighting over assets readily exceeds their value. The largest asset in such cases is typically the home and that is typically mortgaged. If there is significant equity in the home (the home is worth more than is owed on the mortgage), one party might buy out the other. The buy-out could be done in a lump payment, over time or by refinancing. It’s easy to change the ownership of realty. All that is needed is a new deed from both parties to the one keeping the home; however, if there is a mortgage (or other loans) attached to the home, both parties would remain on the mortgage. This could mean that if the party whose name is now only on the deed fails to make the payments, the other party would still be responsible even though that party no longer has ownership. Not a very satisfactory situation. This can be resolved by refinancing or selling the home and fairly dividing up the profits. Another alternative is having an agreement wherein the party receiving the home promises to make the payments and hold the other party harmless from having to pay.
Dividing up vehicles is easy if they are paid for. You can simply see a notary, not a lawyer. However, if there is a loan on a vehicle, the party receiving it may have to refinance or sign an agreement promising to make the payments.
There have been many case wherein one party chooses to merely trust the other to make the house or car payments. I have had many clients do this and I have never heard back from any that they made a mistake in that trust.
So, should you settle yourselves or hire lawyers? If your marriage has accumulated a fortune in assets (large or not so large), it is likely wise to seek professional advice. Once you have that advice, you may still be able to resolve things amicably. If your assets are not worth fighting over and you are able to sensibly divide them, lawyers may not be warranted. In any case, if you are uncertain or unsatisfied, speak to a lawyer. Once you have the proper advice, it will be far easier for you to make the correct choices.