Well, first of all, I'm not a family attorney. Well great, you may wonder, why are you writing a blawg about family and law then? Because I'm a mother and attorney and love to read about any topics that have to do with family rights, women's rights, children's rights, etc. I also think it's important to talk about current events and laws and how they affect certain groups of people.
If you live in another state I'm sure there are great resources in your state and I would be happy to research some if needed.
The Illinois State Bar Association also has a great website that has a whole section dedicated to "Divorce". It includes videos and FAQ
.
My fear as an attorney in advising people to defend themselves against a lawsuit or participate in a divorce as a pro-se litigant is that the individual will not benefit from the laws in their state without having a good attorney on their side. We have all seen the movies that depict pro-se defendants or litigants in a courtroom doing a much better job at representing themselves than an attorney ever would. I immediately think of My Cousin Vinny where Vinny in the end, did a pretty good at defending his nephew, (though I suppose Vinny was sort-of a lawyer, but not quite).
In reality however, a pro-se litigant is going to be faced with many hurdles from the moment he/she steps into a courtroom. Most likely the pro-se party won't be versed in standard courtroom demeanor- how to address the judge and opposing counsel when up at the podium. They probably won't know how to "check in" when they arrive in court. They may not know how to find their case on the call that day. Aside from basic courtroom demeanor, many times pro-se litigants will not have access to routine motions and petitions that attorneys have at their disposal. It may take a pro-se litigant four hours to draft a simple divorce petition, that would take an attorney 30 minutes to prepare. They are usually not well versed in the law and often times may request relief in court that just cannot be sought. I could go on and on but the bottom line is that if you're going to defend yourself or litigate a matter in court without an attorney there are some basic things you should know.
THINGS TO KNOW
1. Use the pro-se help desks- Go to the local courthouse and ask questions. Ask for help. Many times there are help desks where actual attorneys volunteer their time and can guide you in the right direction on how to begin the process including giving you actual forms you must file.
2. Know the notice requirements in your jurisdiction
- you basically have to mail any motions or petitions you file to opposing counsel and anyone else involved in a matter within a certain time before the matter is heard in court, or your motion will be denied. Many times you must include an affidavit or a certificate of service that you sign and date swearing that you mailed the documents in the mail to opposing parties. There is also such a thing as serving someone by publication. This means that if you cannot locate a party you can sometimes publish a notice in a local newspaper for a certain amount of time.
3. Dress Nice
-sounds basic, but many times pro-se litigants do not dress the part and show up in court dressed overly casual. You should take the court seriously and show respect for the court by looking nice. You don't necessarily have to be in a suit, but do not wear jeans or a hat to court!
4. Don't talk to opposing counsel directly when up at the podium. Talk to the judge.
-when it comes time to address the court make sure you do not have a conversation with opposing parties while up at the podium. You must do that before or after the matter is heard. You should only be talking to the judge when you step up to the podium. Also make sure to address the judge as "judge" or "your honor" and that's it! Not Mr, or Mrs., or Sir. Also don't ever ever interrupt the judge!
5. Show up to court on time.
- in fact show up early and find out if you have to "check-in" before court with the deputy or clerk. They will appreciate it and they may call your case earlier if they know all parties are present. This can save you a lot of time.
6. Know the law and the rules of procedure in your jurisdiction.
-Did you make sure to file the correct documents? After you present your petition or motion you will most likely have the judge rule on your motion and enter some kind of "order" either agreeing with you disagreeing with you. But what if opposing counsel wants to oppose your motion or petition and drafts a legal response to your motion. Are you ready to do legal research if needed? You will only be given a few weeks to file a response and you will have to access to a law library or database such as lexis-nexis or westlaw.
There are some rules of procedure that are very specific to the court house you may be in. Such as requiring all motions to be typed in size 12 font in Times New Roman font. Or a goofy rule might be in place that requires motions to be no longer than 5 pages. Other times, even a particular judge may have a specific rule that only applies in their courtroom! Yes, when you are in a judge's courtroom you are in their little universe and must follow their rules! I have known judges that require all motions to be hand delivered to their chambers at least 7 days before the matter is heard in court. You can often times find these rules on the court's website. Or ask for help!
7. Standards
-Don't forget, the judge will hold you to the same standard as the lawyer against you who went to law school for 3-4 years and has probably stood in a court room hundreds if not thousands of times. They will know the law (most of the time), and will know how to handle themselves in court. You just have to try to do your best and ask for more time to file documents if needed.
8. Children
-Will children be involved in the divorce proceeding? This can complicate matters since many times children will be appointed their own legal representative in court known in Illinois as "Guardiam At Litem" or GAL. Usually you or your spouse will also have to pay for their legal fees!
Determining a proper visitation schedule can also be difficult in that you will also have to make decisions about religious education in the future for your children, how holidays will be handled, who will provide health and life insurance for the child, and college education.
9. Marital property division and alimony/maintenance
-Have you and your spouse decided who is going to keep what property? How will you split pensions? 401ks? the house? the cars? How about alimony? Will anyone be entitled to receive alimony? These particular issues are tricky to give any advice on because different states have different laws about how property is distributed during a divorce and how the right to receive alimony is determined. There are two legal theories on how property is distributed: Community Property Distribution and Equitable Distribution. Most states use Equitable Distribution but there are nine states that use Community Property Distribution laws. Those states are:
-Arizona
-California
-Idaho
-Louisiana
-Nevada
-New Mexico
-Texas
-Washington
-Wisconsin.
Long story short, there are major difference in how property is distributed in a divorce. Some states also take into account "fault" during a separation and time separated. I cannot emphasize how important it is to know the laws in your particular state!
10. Are you getting in over your head?
-Finally, if you are going to proceed pro-se in a divorce proceeding, I have found that you have a better chance of success when the divorce is a simple proceeding, and where you and your soon to be ex-spouse can agree on some basic terms of the divorce, such as child custody and property distribution. There are actual some rules that determine whether a divorce will be a simple divorce or not. Such as: the time you were married, whether there were children, amount of property, etc.
There are also uncontested divorces that are usually easier to file where everyone agrees on everything.
If you and your spouse cannot agree on anything AND your spouse has paid thousands of dollars for a big name attorney to represent them, it will probably not end well for you. Try and hire an attorney. Attorneys often times require a retainer to being work but may allow a payment plan for remaining fees.
Unfortunately, if you choose (or feel you have no choice) but to represent yourself pro-se, remember that you are already at a disadvantage in that you do not know the legal system. You've basically come to a fancy cocktail party wearing your holey jeans and metallica t-shirt. You will not fit in, and you will have to compensate for that by understanding at least basic courtroom demeanor, procedural rules, and laws.
If you do reside in Illinois, I will defer once again to www.Illionoislegalaid.org. They have prepared a guide called exactly: "Getting a Divorce in Illinois" that actually gives steps on how to file for divorce. Some of the steps they can guide you through are:
- preparing forms
- filing your forms
- serving your spouse with divorce papers
- getting a hearing date
- getting ready for your hearing date
- mailing judgment to your spouse
- getting your transcript from the court reporter.
Click here for a link to this guide
Getting a divorce is often times a difficult and emotionally draining process. The goal should be to come to an amicable agreement between both parties and move on with your life!
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