Question: My husband and I decided to separate after 14 years of marriage and two children. We are both college-educated, employed, know our finances better than anyone else, know what it will take each of us to live, and understand our children’s needs. In order to save money, we decided not to hire lawyers, whom we believe could escalate our cooperative attitude into a court fight. Instead, we have read books and some of your columns, and spent time on the Internet getting a list of items that should be included in our agreement.

We have prepared several versions of an agreement, and want to make sure we cover everything. Here’s what we want to know: Is there really a reason to have a lawyer involved? Do we need lawyers to take us to court to get our marriage terminated? Could one lawyer review the agreement and advise both of us?

Answer: While there is no law in any state that requires either or both of you to have lawyers involved in your matrimonial issues, there are ethical constraints that prevent one lawyer from representing both of you under most circumstances in this type of transaction.
That said, we believe that preparing your own matrimonial settlement agreement without advice can be likened to diagnosing a your own medical condition and then performing your own surgery – meaning that you suffer the consequences for errors and omissions.

Unless, that is, your state of residence embraces what is called “collaborative law.” Collaborative law is basically an extension of mediation through which settlement of the marital issues is the goal. While you and your husband would each hire your own attorney, the purpose of the representation would be to settle your case and prepare your agreement. In this process, the court system can’t be used except to file documents that have been agreed upon by both of you. If you and your husband can’t agree, then both of your lawyers will be terminated because they cannot engage in litigation for either of you, and your files will be transferred to lawyers to take on the litigation.

Those lawyers who work within the collaborative framework claim to utilize conflict management techniques that are said to be more cooperative and less adversarial. Because upwards of 90% of all divorce cases are settled – most on the eve of trial, lawyers who practice in the collaborative area believe that settlements should be moved to the front rather than the back burner, but acknowledge that this process is not for every couple.

Marital separation agreements should contain a number of basic provisions that will protect both of you and your children in the future. Such matters as support and alimony, custody and visitation, division of assets and debts, and taxation issues should be dealt with in a manner that, hopefully, will put these matters to rest and not cause future problems. Because marital agreements are final, important rights may be unwittingly waived. That’s why it is important to make sure that both marital partners are on an even playing field when it comes to the negotiations. If one spouse is dominant in the relationship and places the other under duress or pressure to sign an agreement that is approved by a court, it is very difficult to get the document modified later.

SoloFact: A great deal can be learned about collaborative law by doing a Google search on the Internet or going to your local library or bookstore. Whether this process is right for you and your husband is your decision. And whether you and your husband design, prepare, and submit your own agreement is your decision. Keep in mind, however that even well-educated people make mistakes when they venture outside their area of expertise.