Pro Se or No? Why You Actually (Probably) DO Need An Attorney
People ask us all the time, “Do I really need a divorce lawyer? It’s just diving by two, right? How hard can it be?”
The honest answer is: people don’t need a divorce lawyer. You have a constitutional right to represent yourself — proceeding “pro se” — in court. However, you also do not need an obstetrician to have a baby.
Babies have been born the same way for thousands of years. But sometimes things go wrong — and when they do, having an obstetrician there to ensure the health of mother and baby is an irreplaceable service. And sometimes, even when things go right (past the screaming pain and exhaustion and “Am I dying?”), it’s nice to have someone calm and collected to tell you “Everything is fine, it really does just hurt this bad!”
Divorce is the same. Once a divorce is filed, it is like a train headed through a tunnel. It IS going to come out the other end — but having an attorney can make the trip much smoother. If you’re in the middle of handling your own divorce and realize you’re in over your head, having a lawyer there to take the reins can be invaluable. Likewise, when you are frustrated by the process and think nothing is going right, an experienced attorney can reassure you, “everything is fine — it really does just hurt this bad.”
The fact is, dividing by two should be easy, but there are a million ways to do it in divorce court. Some are better than others. And some are specifically better for you than your spouse. To use another broad analogy, if you have one twenty-dollar bill and four five-dollar bills, you have forty dollars. You might think it’s fair to give the twenty-dollar bill to your spouse while you keep the five-dollar bills for yourself. That way, you will each have the same value.
However, your spouse might say, “That’s not fair! She got four bills and I only got one!”, wanting the same number of things. The divorce court will solve this by taking all 5 bills and ripping them in half — giving half to you and half to your spouse. You will have an equal amount AND equal value in the court’s eyes — but what have you gained? Your forty dollars has been destroyed by the process.
This happens most often in the “real world” of divorce when pensions or retirement accounts are divided. Parties who choose to file pro se may agree it’s fair to divide a pension equally, but might fail to specify whether the account should be divided on a percentage basis (50/50) or a dollar basis ($45k/$45k). If they fail to follow the proper laws and file the right paperwork to divide the pension immediately (which often happens because the process involved third-party service providers and is quite convoluted), it can be many years before the pension is distributed between the parties. The pension administrator might not be able to properly divide the account if the parties’ agreement at the time of divorce was unclear. This means rather than collecting on your share of your spouse’s pension, you might spend part of your retirement time fighting them to collect your money.
Parties who represent themselves might also make agreements that are against public policy (meaning, agreements they cannot legally make). For example, Spouse A might agree to continue providing health insurance to Spouse B after the divorce through an employer-provided policy. However, the insurance policy is not a party to the divorce, and if the policy denies coverage for a former spouse (which is often the case), the parties’ agreement will not be possible. Parties to a divorce cannot make agreements that force third parties to do things for them. Again, how should this be fixed?
Judges must approve divorce agreements, but they cannot save you from your mistakes. Often, they will not even know you made them. As in the example above, if one party agrees to provide insurance, the court will assume the party knows what they’ve agreed to; that they have considered alternatives; and that the agreement will function as proposed. Judges cannot give legal advice. Even if they see ways to make things better, they can’t help you do so.
And there are other nuances to the divorce laws that are far more complicated than dividing by two. If you represent yourself in a divorce and it goes to trial on the issues of custody, child support, and property division, the court will have to consider evidence on 43 different factors — and it will be up to you to prove your case on all of them. Do you know the rules of evidence? Do you know how to make proper objections, and how to cross-examine a witness? In contested hearings, pro se litigants hold to the same standards as attorneys. This might not intimidate you if your spouse also self-represents. But what if they show up to the trial with a lawyer?
You must also ensure the divorce meets all technical procedural requirements. Do you know where your divorce needs to be filed? Is it the same place you were married? Is it at the federal courthouse? The state courthouse? In the county where a particular spouse resides? How do you give proper notice of the proceedings to your spouse? What if you can’t find your spouse, or they refuse to “accept” the papers?
Even the simplest of divorces can be daunting — don’t leave your future to chance. For more insights about the ways in which a divorce lawyer can make the process easier, call us for a consultation.
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