When lawyers say you should never represent yourself, even in so called, “simple” cases, they are often accused of being greedy, driving up fees, and unwilling to acknowledge that there are smart people out there that are capable of working out the terms of a settlement. I have recently been involved in a case which has been really bothering me. It is the perfect example of an intelligent, thoughtful, detailed oriented individual who believed he knew what he was agreeing to twenty three years ago when he was divorced and now finds himself in a position where a trial court has interpreted his divorce settlement agreement far differently than he did back then.
In my case, my client did not have an attorney at the time that he was divorced . He and his wife were able to reach an amicable agreement as to the terms of their divorce and she hired a layer to draft the agreement and put the divorce through. When they got the issue of my client’s retirement benefits, he agreed to language which he thought would limit his ex-wife’s share of his retirement. Unfortunately, he did not have his own counsel to inform him of what is often referred to the “marital foundation” theory, which essentially means that as a result of the foundation that is built in the early part of employment ( which usually occurs during the marriage), a former spouse will be entitled to the benefit of some post marital efforts.
Usually, a former spouse’s entitlement to a retiree’s pension is calculated by use of what is known as a “coverture” fraction. In its simplest form, the coverture fraction is one in which the numerator is the number of years or months that the employee worked during the marriage and the denominator is the total number of months or years worked. That fraction is then multiplied by the percentage of which the former spouse is entitled ( usually 50%). The resulting number is the actual percentage of the pension payment that the former spouse will receive. This fraction is used for several reasons. First, as I have previously stated, the theory is that during the marriage, a foundation is built which allows the working spouse to advance in later years. Second is the reality that this is a mathematical way to segregate out the marital portion. It is not, however, a perfect science given the way that the majority of pensions are calculated. The end result is often that the former spouse shares to some extent in a pension benefit that is calculated based upon a higher salary which was earned after the divorce.
There are, however, certain retirement plans that are calculated in such a way that a more precise calculation can be made in order to “carve out” the marital portion. However, in those rarer instances, litigants have to be very careful in how an agreement is worded in order to avoid problems at a later date. And that is where my client ran into a big problem. His retirement was one in which there is a way to carefully calculate the marital portion, if it is done correctly. He knew at the time of divorce what he was agreeing to, but unfortunately, the resulting provision in the settlement agreement was a bit ambiguous. He is now in litigation in order to determine what amount of his retirement he has to give his former spouse. The difference between what he thought he had agreed to and what may be ultimately given to his former spouse is in the tens of thousands of dollars. Had he been represented by counsel who understood the intricacies of calculating retirement benefits between spouses, it is likely that now, 23 years later, he would not be in the Courts.
The moral of the story is that you do need a lawyer. There are plenty of amicable divorces out there in which the two spouses have reached an agreement on their own and are not going to fight to the death in a War of the Roses. Yet ,in order to make sure that you are both on the same page, both of the parties should seek the advice of counsel in order to make sure that what they agreed to is what is in the end document. While 39.99 on the internet or in an office supply store seems like a good deal now, it could cost tens of thousands of dollars later.