The Perils of DIY Divorce with Attorney Philip Spradling

In this episode, I chat with Attorney Philip Spradling. Philip discusses the problems that can arise when couples decide to divorce themselves without the assistance of an attorney. DIY divorce can be just as problematic as a long, drawn-out contentious divorce. 

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Transcript

Announcement:  Welcome to the Gray Divorce Podcast hosted by divorce financial analyst and retirement planning counselor, Andrew Hatherly. Join Andrew and guest experts as they help late life divorcees build the financial and mental foundation for a meaningful future. There is life after divorce. Now onto the show.

Andrew Hatherley: Welcome to episode 26 of the Gray Divorce Podcast. Our guest today is attorney Philip Spradling. Philip practices law in the state of Nevada and is the founder of the Las Vegas Divorce and Custody Center. His firm works only as a neutral to give people the legal information, advice, and assistance they need to resolve their divorce or custody matter fairly, quickly, and inexpensively.

Philip is here with us today to discuss the topic of the perils of do it yourself divorce.  Philip, welcome to The Gray Divorce Podcast. 

Philip Spradling: Thank you for having me. 

Andrew Hatherley: Philip, regular listeners of The Gray Divorce Podcast will know we spend quite a bit of time talking about the emotional and financial stress of a long drawn out litigated divorce that quite often can involve litigation oriented attorneys.

The other side of the coin- that can come with its own set of problems- is a do it yourself divorce where no attorneys are involved at all. I'm curious, how many people out there are doing their own divorces without attorneys? 

Philip Spradling: I haven't seen official statistics published, but judges generally keep track of this and they tell me that in over half the cases, neither party is represented by an attorney.

Andrew Hatherley: Wow. I didn't think the number was that big. 

Philip Spradling: That would mean- I suppose you could extrapolate from that- that in more- in- I don't know- 55 percent of the  cases, neither party has an attorney, and probably 65 percent of the people don't have attorneys. So it's very common for people to not have an attorney.

Andrew Hatherley: Philip, are there some people who don't need attorneys? 

Philip Spradling: I think that it's almost always important to have an attorney involved somewhere, somehow. Attorneys will tell you that if there's truly nothing to lose, then it doesn't matter. Then I guess you can't mess it up very much. So if it's a very short term marriage, like 6 months or a year if there's no children and you have no assets and no debts, then I guess there's really nothing much at issue.

Then it's hard to mess that up. But if it's important, if there's kids or if you have assets and debts that need to be divided, then you really want to have an attorney at least look at it and let you know what your rights are. 

Andrew Hatherley: Yeah, that makes a great deal of sense. So it's really a very rare case where you wouldn't need an attorney.

In most cases, at least have somebody there  to- to review the documents. I'm curious- in your experience- why is it? I think I can probably guess one of the major- four letter word “cost”- why people choose not to use an attorney. 

Philip Spradling: I'm certainly- I'm certain that cost is a big factor of it.

And I know that in- in long drawn out cases, and we're talking about 20-30-40-50,000 dollars that it can be quite a lot. And that's the other extreme of it- to have the full, year long litigation through- for your divorce. But I think that there are alternatives that are much cheaper that can still give you the advice that you need from an attorney without going through that kind of cost.

Andrew Hatherley: All right. Other than cost, what would prompt someone not to?

Philip Spradling: I think a lot of people just don't think that a divorce and the divorce paperwork is important. And it is important. Those documents are binding on you. And if you're dividing any assets or debts, or, you can  be determining your future.

And a lot of people- they trust what their spouse is telling them. They trust their spouse to do right by them in the future. And a lot of those people end up getting burned. That there- there are many wives out there, for instance, that their husbands have always managed the finances and they have always trusted their husbands to manage the finances.

And then when it comes time to, for divorce, they say, ‘okay, manage the divorce. That's another financial transaction’. And some husbands I'm sure, do the right thing, but many of them don't. And in that last financial transaction, the other spouse really gets hurt. It is important. It is important in almost all cases.

So I would urge almost everybody to at least have an attorney there to assist you, if not to do the full litigation. 

Andrew Hatherley: We'll get into some of the common mistakes in a minute, but just step back for a second. The last thing a couple should want once they've done a  divorce- let's say it's a DIY divorce- the last thing that they should want is to have to relitigate it three or four or five years or longer down the road after they've set themselves on a new path, established new lives, moved to different states or countries.

Philip Spradling: I'm glad you said that because that's- when you asked me to do this- that was the first thing that came to mind is a mistake that almost everybody makes when they don't have attorneys and that is that they fail to properly notice their decree of divorce. 

Andrew Hatherley: What do you mean? What do you mean “notice the decree of divorce”? 

Philip Spradling: Stepping back a second, right? What do you do to get your divorce? You have to start your case off whether that's by a complaint, an answer, or a joint petition. You start your case off and then you eventually come to some sort of settlement and then you get your decree of divorce.

You draft it. And then you get the judge to sign it, and then you file it. And then people think, okay,  ‘I have my decree divorce. It's signed by the judge. It's been filed. I am done’, but you're not done. Not quite. Now you have to notice it, which means that you take that signed- the decree of divorce signed by the judge, file stamped, and then you put a cover page on it that says, ‘please be on notice that this decree of divorce was entered in this case on this day.’

And then you take that and you have to serve it by U. S. mail to the other party. That's what you have to do to notice your decree of divorce. And that's important. Because there's a lot of deadlines that don't start with the decree of divorce, they start with noticing the decree of divorce.

Andrew Hatherley: Deadlines? Yeah, okay, so what do you mean?

Philip Spradling: For instance, the- there's a- you have seven days to ask to reconsider- in our court, at least. You have 30 days to appeal. And you, and for the most part- usually there are six months to  set aside the decree of divorce, but those time periods don't start running until you actually notice it.

I had a case once where husband went- he got us to create a divorce. He got assigned by the judge, got it filed and, but he didn't notice it. And then a couple of years later, he acquired some properties, his wife found out about it, and then his wife went and tried to set the decree of divorce aside and say that, ‘no, I don't think the divorce was proper.’

And then she tried to make a play for those properties that he'd acquired. And this was three years later now. Normally, that would have been time barred if he had noticed it, but he didn't notice it. So she was allowed to try to do that. No, ultimately he prevailed, but not after spending tens of thousands of dollars litigating that.

Andrew Hatherley: You said time barred.

So this failure to notice, after a certain- okay, is there a certain time period?  If I did a do it yourself divorce, and I failed to notice it and then 20 years later, my ex came along and had wanted to claim on assets, would that stand? 

Philip Spradling: It can. Yes, it can. The time is a factor, but- but yes, the six month period usually starts from the notice of entry of the decree of divorce, not the decree of divorce. So yes- in theory- 20 years later, she could come back and say, ‘no, that divorce wasn't proper. I want to redo it. I don't think we should actually be divorced’

Andrew Hatherley: Wow. That's a pretty- pretty severe mistake. And, even having gone through divorce, I was- and now I had an attorney- so I'm assuming my attorney noticed the…

Philip Spradling: Your attorney didn't make that mistake. Yeah. 

Andrew Hatherley: But that is a pretty profound mistake. Okay. That's a pretty key filing error. Let's look over some of the other reasons why people should- should use an attorney. And  we're not saying, ‘go the litigated route- go the guns a blazing route.’

We're just saying have the proper legal advice when going through a very important legal process. Lay the groundwork a little bit where else an attorney can- can help people avoid other types of mistakes. 

Philip Spradling: So let's talk first about this- the divorces that are filed uncontested where there is an agreement as to how to go forward and there's a settlement and everybody files that and everybody just signs off on it.

Andrew Hatherley: Is that what's known as a joint petition?

Philip Spradling: You can have an uncontested divorce that's still done by complaint and answer. You just do a complaint and answer and then a stipulated decree of divorce right with it. So it doesn't have to be by joint petition. Those are just two different ways to do it.

But yes- joint petition is an uncontested way. And again, a complaint and answer- if it is immediately followed by a stipulated decree of divorce- that would be uncontested too. 

Andrew Hatherley: Okay. So  uncontested divorce. 

Philip Spradling: So just talking about the uncontested divorces. If somebody goes to try to set it aside later on- simply having legal counsel is one basis to not set it aside.

And on the flip side- if you don't have legal counsel, it's much easier to set it aside. In a way, you want your spouse to have legal counsel to advise them so they can't set it aside six months later, even if you do get it properly noticed. And if you don't notice it, then of course it could be any time later.

But that's something to consider. Just having legal counsel prevents that divorce from being set aside or is certainly a factor in keeping it from being set aside. 

Andrew Hatherley: Because one party can't argue, ‘I didn't know what I was doing’? 

Philip Spradling: That's right. That's exactly right. It's very common for one spouse to say, ‘I didn't understand what I was entitled to. I didn't know the law. I'm legally unsophisticated. And therefore, judge, please set aside my divorce.’ 

Most people, when they get divorced, they want it to be done.  They want it to be done right then. They don't want it to come back 6 months later. And so getting them counsel is one way to do that. One- one important way to prevent them from setting aside the divorce later on.

Andrew Hatherley: Okay. That's obviously important, but what about some of the errors that people make that might be obviated by having an attorney? 

Philip Spradling: Sure. There's just numerous errors that people can make and it's because most people don't get divorced all the time. They just don't know all the different problems that you might have. 

Whereas divorce attorney, you become used to those things. For instance, I had- I saw a divorce decree once and it said, ‘they had a house, they wanted it sold and it said the house will be sold forthwith’. And that's nice, but that doesn't really tell us what we needed to know.

Who's the realtor going to be? What's the listing price going to be? If the house doesn't sell, then are we going to lower the price by how much and when who's going to live in the house? Do we  have to have a key box on the front of the house or can it be by appointment only? Who's going to pay the bills in the house while it's being sold?

Those are all important issues. And these people, they didn't think of that, that through until it actually hit them. And then suddenly they realized that they don't know what they're doing, and they have to go to court and have to litigate the sale of the house. Just saying forthwith wasn't enough.

Andrew Hatherley: They're playing ‘lawyer’. 

Philip Spradling: Yeah. Yeah. And- but there's other things too. Custody decisions can be very complex when it comes to schooling for kids, behavior between parents, health decisions for your children. But other assets and debts- how are you going to divide those up? How do you protect yourself if the other party goes into bankruptcy?

There's all kinds of things that a lawyer- a good lawyer- can help you avoid problems later on by putting all the terms you need in your decree of divorce- things that people don't think of if they're just doing it themselves.

Andrew Hatherley: Yeah. I'm thinking as a financial advisor, the tax consequences  of settlements.

And certainly- this is something I've even seen- good attorneys will understand, not every dollar is the same in, in, in a property settlement division, but fewer individuals- particularly without attorneys- will recognize the difference between a dollar split from a checking account and an IRA.

Philip Spradling: Yeah. Or like a 401k. That's right. The pre-tax dollars versus already taxed dollars. That's certainly important. 

Andrew Hatherley: Yeah. 

Philip Spradling: And- and I guess I wanted to say beyond that- that people should understand that the court is not going to protect you from yourself. I- many years ago- I actually spent a summer working for a judge.

And I was the guy who went through people's decrees of divorce and decided whether or not they were- they were okay to sign- for the judge to sign. And I'll tell you that no effort was made to make sure that the divorce decrees were fair or reasonable, or clear, or  even feasible, and there are some cases where I would look at these things and I would think, ‘boy, these people are coming back to court in two years because this does not make any sense’.

I don't think these people know what they agreed to. I certainly don't know what they agreed to, but the judge would sign it because the judge is just going to figure, ‘this is what they want to do. I'll sign it. I'm sure they'll be back, but I'll sign it’.

Andrew Hatherley: Wow. But, that kind of shocks me.

I had always thought that if somebody put a ridiculously one-sided decree in front of a judge after- going- doing it themselves or mediating it themselves, that the judge might say, ‘hang on a second, this isn't right’. 

Philip Spradling: Now, no, not when it comes to finances. When it comes to children, the judge might have some- some questions, but when it comes to finances, the judge is just going to figure this is what the parties want to do.

And they have to protect themselves, and it's just not the judge's responsibility to protect the parties. The judge will protect the children, but not the parties. You sign off on it- it's  yours. It's your decree and you have to live with it. 

Andrew Hatherley: Just an aside here. I'm curious- because we're talking about judges- let's say relatively early in the process- and I know we're talking about uncontested right now- so maybe this- I should save this- but while I'm thinking about it, I want to ask it- if they're before a judge, when would a judge take it upon themselves- or would they- to say, ‘hey, you guys should really get an attorney because you don't know what you're talking about or doing’.

Philip Spradling: I have seen that. I have seen that. I've seen that a lot. If- especially if it looks like- these parties don't know what they're doing and they have enough money to hire an attorney, the judge will absolutely say, ‘you should get an attorney’. Now, that doesn't mean that parties do, but they should.

Andrew Hatherley: Yeah. Is there anything else you want to say about uncontested before we segue to… 

Philip Spradling: No, let's go on to contested divorces. 

Andrew Hatherley: Okay. 

Philip Spradling: And when it comes to contested divorces, I'll tell you that  the mistake people make is that they just don't know what's important. They don't know what to argue or what to tell a judge.

Contested divorce means you're filing motions, you're going before a judge, you're trying to argue your case. And people don't know what to say. They don't know what's important. It's worth noting- somebody figured out some time ago that a judge on average spends about 4 minutes reading what you write and about- and I'd say probably about 4 minutes listening to what you have to say.

And then based on that, a judge will make a decision. And the judge is not going to spend an hour listening to you trying to get all the facts the judge needs. The judge is just too busy to do that. And so if you waste your four minutes talking about ‘my- my spouse is a bad person. They're- they abused me. They're relentless. They're not very nice. I don't like them. They cheated on me. They have 5,000 girlfriends.’

The judge does not care because Nevada is a  no-fault divorce state. A judge can't consider that stuff and you've wasted your time and the judge is here and now the judge is going to make a decision that may not be in your favor because the judge didn't have the facts.

Andrew Hatherley: Yeah- I mean it's- we, as divorce professionals- we all know that people love to vent and unfortunately, as you said, it's a no-fault divorce state. It doesn't matter. And if the judge is only going to allot a certain amount of time to listen, you want to focus on the key issues for him to judge on and those issues are not going to be the personal issues [they] are going to be what property division, spousal support, let's talk about separate community property, for instance, that must be something that…

Philip Spradling: Yeah that's an important issue you want to identify to the judge.

This is community property because it was acquired during the marriage, not by inheritance, or a gift, or-  or property injury settlement. 

Andrew Hatherley: Do you find that people are typically not well-versed on either A- the differences between separate community and B- how to calculate it if they were? 

Philip Spradling: Yeah. People really don't understand for the most part. Some people do- in time, they acquaint themselves with the law enough that they can make an argument.

But most people they're too focused on venting, as you say. I had a long case once and the wife spent the entire time- the entire litigation litigating, and she argued over and over again, ‘my husband is a no-good loser. He's a drunk. He can't hold down a job’, right?

Which she thought was going to help her, right? She's like, ‘yeah, my husband's a loser, judge. Don't give him anything’. And the judge went, ‘oh, he's a drunk. He can't hold down a job. That's why he needs alimony from you because he can't support himself’. It went the opposite way from the way that she thought, but the judge couldn't consider it  the way she wanted.

She can't- the judge can't consider it for fault, but the judge can consider it for its financial ramifications that he can't support himself- that he's a drunk. So that's why- so it really hurt her, but she didn't understand. 

Andrew Hatherley: That's a really- that's a really telling anecdote. I think alimony is quite often an issue where people are confused and really need to get educated by someone such as yourself.

I know- and, we don't want to sound elitist about this either because- as you said earlier- divorce is not something that happens every day in people's lives. They're not expected to know anything about it. I think what's incumbent upon people is to realize they don't know, and to be afraid of what they don't know, and how it might potentially hurt them.

I know when I was going through my divorce- and I've got a graduate degree, and I'm a professional, and all those good things, but I was- I didn't know the first thing about how alimony was computed. And then  my ex at one stage- when things got contentious- told me that I would be paying alimony for the rest of my life, which at that time was probably a 30, 35 year life expectancy.

It's- if I'd known, or I'd spoken to an attorney before freaking out about that. I would have realized it was highly unlikely that I would have been paying alimony for 35 years based on a 20 year marriage. People in general just don't know about it. 

Philip Spradling: Alimony is- I'll say- it's one of those things that you just have to have a lot of cases under your belt before you can really understand how alimony is done.

And after a time- after you have enough experience- yes, you can figure pretty close what the alimony award would be. But no- based on just- there's no formula for it- there's no rule- there's- and it's not something that somebody could know without having litigated dozens of cases.

Andrew Hatherley: Yeah. I guess the other thing about  contested divorce and not having an attorney involved- now, people [who] listen to this podcast know that whenever possible we look for alternatives to a long drawn out litigious situation, but- let's face it- the job of an attorney in a contested divorce is to be an advocate for somebody who may not be able to advocate for themselves due to power imbalances, education, whatever. 

So I'm sure this is- this is another important area where you see things going south for people is that when there's no attorney, people can be taken advantage of by a more powerful or educated spouse. 

Philip Spradling: That's absolutely true. And if you don't have an attorney- especially if your spouse does have an attorney- you can absolutely be taken advantage of because you don't know- you don't know what's important.

You're going to probably waste your 4 minutes on something that's not important. And your spouse's attorney is- may be more knowledgeable- may be able to convince the  judge to do this and that- may omit things that are not in their favor. And yes, absolutely, if you don't have an attorney, you can be taken advantage of.

And if neither of you has an attorney, then, you're probably just going to get a decision that doesn't reflect any of the important facts. It's just going to be out there. 

Andrew Hatherley: Let's wrap up here- our last 10 minutes or so- by talking about alternatives because- it's like- we're talking about extremes here.

The idea of a contested divorce where you don't have an attorney at one end or even uncontested where [it’s] completely do it yourself, no attorney involved versus the highly litigated- the fully litigated divorce between two, aggressive attorneys. Where does your work come in, Philip?

You're not either end of the spectrum here. How do you help people? 

Philip Spradling: So the alternative that I provide is I act as a third party neutral. I'm not an advocate for either side. And so what I do is I meet with  both parties separately and I understand what the facts are- what their positions are, what they're thinking, and then I inform them of what their rights are- both parties.

And once I do that, then we come up with a plan for how to resolve things and usually that means we need some documents, bank statements, credit card statements, whatever. Sometimes we need other things like an appraisal, a house appraisal, or maybe even a business appraisal. If that's an issue or, there's other things we might need professional help with.

Once we do that, then we come- get back together. If there are any disputes, we use mediation to resolve those. And then finally, once all the disputes are resolved, then I draft the paperwork, everybody signs it, and I submit it to the court. And that might seem like a long process, but for most people that can take just a matter of days from start to finish.

It's a matter of how long does it take you to get me the documents? How long does it take us  to get the house appraisal? And usually the mediation is only a day. Now, if it's like millions of dollars, then it might take a couple of days to mediate all the disputes, but we can do that. It's- it's a lot cheaper, most people are going to pay two or three thousand dollars to get that done.

And it's a lot quicker, it's going to take days instead of a year to litigate a divorce. And it's certainly a lot less emotionally painful for people. So I really feel like I do a good service for people. This is what most people need because I- the whole contested, year long litigated divorce between two attorneys fighting for their clients.

I totally understand people don't want to do that. And I wouldn't wish that on anybody. It's a horrible experience. But on the other hand to just wing it- with no advice- that is the other side of the spectrum where you just don't know what you're going to get. And you're probably going to give up a lot of rights that you- that you should try to enforce.

Andrew Hatherley: I always tell people in the divorce workshops that  I do from the financial standpoint that divorce is often the largest financial transaction of your life. Is this something- as you say- that you want to wing? You don't want to wing it. You need some sort of guidance. And, I'm glad that you're conveying to the world here that there are services available- such as yours- where it doesn't have to be particularly expensive- certainly in the grand scheme of- of one's net worth. 

A couple thousand dollars to- to get some valuable legal advice seems an obvious decision, but unfortunately, still not because people don't have- don't have the right idea about divorce, and they're not educated about divorce.

I'm glad that you were able to- to provide some- to shed some light on this Philip. We've mentioned you practice in the state of Nevada, right? 

Philip Spradling: Right.

Andrew Hatherley: Alright. So I'm just curious that- the concepts that we're discussing here- it seemed to me the concepts- that would spread nationwide, no? 

Philip Spradling: Yes. Yes. I know in other states- probably  more than Nevada- these alternatives are very important. Mediated divorces- collaborative divorces. Those are all concepts that are very common- even more so in other states- as I understand it. Nevada has been on the back end of that.

And I think people still have this idea that they have totally litigate their divorce with two attorneys, or just wing it if they can't afford attorneys to do all that. But- but no, we have alternatives here too, and I hope more people take advantage of those. 

Andrew Hatherley: So you did mention- I know you are collaboratively trained- and I've done a separate podcast on collaborative divorce- the way you describe yourself as a third party neutral. Could you just briefly shed on- how does- that distinguish from a mediation process? 

Philip Spradling: So I use mediation, but normally a mediator would only do part of what I do.

Normally, you would bring your case to the mediator, tell the mediator the facts- with or without an attorney- and then the mediator would help you resolve the dispute.  So I do that, but I also help- taught- help both parties on their own understand what their rights are- what the facts are. And so I do it all.

I do it from the beginning all the way to the end- meet with them, talk to them, understand what they're thinking, understand what their positions are, understand the facts- usually takes an hour or two hours or more, but I spend the time that it takes then inform them what their rights are. Then we come up with a plan whether we need appraisals or whatever, documents, whatever it is we need to do to resolve the divorce.

Then we mediate it as like the third step of it. And then I draft the documents for them too. Normally, the mediator would only try to resolve the issues. It's just the third step. That's only part of the service that I provide. 

Andrew Hatherley: This sounds like a great service, Philip. How can our listeners in the state of Nevada contact you?

Philip Spradling: My, my web page is at LVDACC.com- Las Vegas Divorce and Custody Center.com. My phone number is 702-769-2747. And I'm anxious to hear from people who need more help. And my- just talking to me on the phone is free. If there's a consultation then that's usually going to be $200 for about two hours, and then we can go forward from there.

But it is much cheaper than getting the full lawyer to litigate your divorce, to be sure.

Andrew Hatherley: Definitely. Philip, thanks very much for your time and your expertise. Appreciate having you on the podcast. 

Philip Spradling: Yeah, it's my pleasure, Andrew. Thank you. 

Announcement: Thanks so much for tuning into this episode of the Gray Divorce Podcast to learn more or get in contact with your host you can visit Andrew's website at transcendretirement.net. 

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Andrew Hatherley: Information provided is educational only and should not be construed as legal or tax advice. Each situation is unique and should be discussed with your tax or legal advisor prior to implementation. Andrew Hatherley is not an attorney and does not provide legal advice. Information provided is financial in nature.

Advisory services offered through Hatherley Capital Management, LLC. Divorce financial analysis services offered through Wiser Divorce Solutions, an affiliated company.