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Decades Of Litigation Experience

THE DANGERS OF PROCEEDING PRO SE IN A DIVORCE

| Feb 18, 2021 | Firm News |

by Matt Cavallo, Esq.

Some, if facing a divorce, may be tempted to avoid hiring an attorney to represent them.
Representing yourself in a divorce action may seem to be way to avoid incurring legal fees.
However, divorces can be complex and it is generally unwise to represent yourself in these
proceedings.

Even in a simpler case where no children are involved, you should still consult a
knowledgeable lawyer. An attorney can help you properly disclose your assets and also help you
negotiate for what you are entitled to under the law. For example, you may not know that you
could be entitled to a portion of your spouse’s pension or other retirement accounts, but a
knowledgeable family law attorney will be aware of this and can ensure that you receive an
equitable distribution of the marital property.

If you and your spouse agree on all issues surrounding the divorce, then a settlement
agreement can be drawn up. Importantly, however, the settlement agreement you enter into must
meet certain criteria under the law in order to be enforceable. As one case from New York states
with regard to such agreements, “[a] stipulation of settlement should be closely scrutinized and
may be set aside upon a showing that it is unconscionable or the result of fraud, or where it is
shown to be manifestly unjust because of the other spouse's overreaching.” Cruciata v. Cruciata,
10 A.D.3d 349, 350 (App Div. 2d Dep’t 2004).

A court can intervene and declare part or all of a settlement agreement invalid “if the
settlement is manifestly unfair to a spouse because of the other's overreaching.” Christian v.
Christian, 42 N.Y.2d 63, 72-73 (N.Y. 1977). In addition, “while evidence that one spouse was
not represented by counsel is insufficient, standing alone, to find such overreaching, it is a
significant consideration when determining whether the parties entered into the stipulation freely
and fairly.” Kavanagh v. Kavanagh, 2 A.D. 3d 688, 689 (App. Div. 2d Dep’t 2003).

Thus, the lack of legal representation by either party to a divorce can result in any
settlement agreement potentially being deemed invalid by the court. Failing to have counsel on
both sides negotiate the agreement can result in a confusing settlement process that is
unproductive. Overall, it is probably best to hire counsel for your divorce case even when the
issues involved are relatively straightforward.