As the result of our bad economy, more and more divorcing couples are attempting to act as their own lawyers. While this may save money in the short run, the long run consequences can be both devastating and irreversible, especially when it comes to how the parties divide their property. This is because, under the laws of Connecticut and many other states, once the court has approved an agreement to divide marital property, the agreement can never be changed.
One of the biggest mistakes so-called pro se litigants make in handling their cases is failing to take advantage of a process known as “discovery”. Discovery is the mechanism by which lawyers collect evidence to use in lawsuits. In the case of divorce, lawyers routinely file formal requests for documents, not only directed to the adverse party, but also directed to employers, unions, banks, and others who might have financial information relevant in the divorce. Divorce lawyers then use the information they have gathered to prepare for negotiation and trial.
If they did not perform this crucial step in the litigation process, they would be forced to rely upon the notoriously inaccurate information provided by the adverse party on a single document known as a “financial affidavit”.
Unfortunately, this is exactly what the majority of pro se litigants do. This can result in serious miscalculations of the amounts of alimony and child support that should be paid and can also result in the over or under valuation of assets. It can even mean overlooking marital assets entirely.
When balanced against the cost of giving up a fair share of a lifetime pension, for example, the savings realized by going it alone in divorce court can be insignificant.
There is no reason why pro se litigants cannot conduct their own discovery if they first educate themselves about the types of discovery available and the rules for conducting it.
While non-lawyers do not have the right to issue subpoenas on their own, court clerks generally can sign subpoenas on their behalf.
Some requests for discovery do not even require subpoena power, notably when the request is addressed to the adverse party. Just by formally requesting items such as bank and credit card statements, tax returns, and more, pro se parties could potentially do a far better job in representing their own interests. Sadly, though, most are either unaware of the process or unable to maneuver the system in order to collect the information they need. Still others don’t know what to ask for because they are unaware of what assets are divisible in a divorce
Courts in Connecticut and in most other states are making great strides in providing assistance to pro se litigants through programs that provide do-it-yourselfers with the forms that are required to process a divorce, but rarely does the assistance go beyond that. In fact, court personnel from clerks to judges are generally prohibited from offering legal advice at all. Nevertheless, people who have been provided with a set of necessary documents by a court official are often left with the illusion that they have received the range of legal counsel and assistance that they would have received from a lawyer.
Others feel comfortable trusting their spouse to provide full and adequate financial disclosure and therefore see no need for discovery. Any experienced divorce lawyer will tell you that this is a mistake. This is not necessarily because the other party is dishonest, but because neither spouse may fully understand how to report income and assets. Many honest people also make the mistake of believing they don’t have to disclose occasional income like bonuses or regular overtime simply because those kinds of income are not guaranteed.
If you find yourself forced to act as your own lawyer in a divorce, you should, at a minimum, visit your local law library and spend an afternoon reading the statutes covering divorce, paying special attention to those related to the discovery process.
If you can’t afford to retain a lawyer to provide full representation in your case, you may be able to hire one on an hourly basis for limited purposes such as preparing discovery requests for your signature, or reviewing proposed divorce agreements before a final hearing. When you consider how much it will cost in the long run, to inadvertently forego an extra $50 a week in child support, or $1000 a month in future retirement income, it’s easy to see that working your way through the discovery process is a rewarding task.
Discovery is a process through which parties to a lawsuit collect evidence and information to prepare their cases for settlement negotiations or trial.
Often, parties squabble over whether certain documents or areas of questioning are ‘discoverable’. Usually the dispute over whether a discovery request must be honored is based on a claim that the document or information is either too burdensome to produce or is protected by laws concerning personal privacy.
Lately, more and more of those squabbles concern whether an individual’s Facebook password is discoverable. For anyone who hoped that their Facebook privacy settings were enough to keep their online discourse private from enemies or adversaries, that hope is fading fast.
Most often, Courts deal with demands for Facebook access in the context of personal injury litigation where the defendant wants to use Facebook photos or posts to show that the plaintiff’s injuries are not as serious as he or she claims. Let’s face it – photos of your golf swing or dance moves will shoot serious holes in your disability claim.
Courts increasingly agree that Facebook postings are fair game in the discovery process.
Laws that prevent Facebook, itself, and other social media sites from disclosing member’s private information are of no help if you are the one being asked to allow access. For example, a Pennsylvania court recently found that the federal Stored Communications Act, which would have prevented Facebook from honoring a subpoena of documents, did not apply to the Defendant, himself.
Personal injury litigation is not the only area of law affected by this trend. In a recent pretrial ruling, a Connecticut court paved the way for a divorcing couple in a child custody case to examine each other’s past and current Facebook posts following an attempt by the wife to change her password and delete posts.
Conventional wisdom has always dictated that we shouldn’t post anything on Facebook that we wouldn’t want a potential employer to see. What this growing body of caselaw shows us is that, when you share too much information with your Facebook friends, you risk losing more than just a job.
In a case set to be released on May 21, 2013 the Connecticut Appellate Court has overturned a lower court’s ruling that lowered the child support of a visiting father from a presumptive amount of $100 under existing guidelines to $75 as a result of the mother’s relocation within the state.
The trial court in Kavanah vs Kavanah found that Leo Kavanah’s costs in traveling back and forth between Southington, Connecticut and Monroe, Connecticut were ‘extraordinary’ within the meaning of Connecticut’s child support guidelines as they address reasons for deviation from presumptive support amounts.
The higher court held that the trial court had not sufficiently explained the basis for its conclusion that Mr. Kavanah, who had been ordered to do the driving for visitation, would be incurring extraordinary expenses — as opposed to normal expenses — as a result of his wife’s relocation.
This, alone, would not necessarily affect future cases assuming that parents seeking deviation for this reason were careful to present evidence of their visitation costs and that judges ordering deviation were careful to make specific findings about why they were reducing support.
However the Appellate Court did not stop at finding fault with the thoroughness of the lower court’s decision. In addition, they cited with approval another Superior Court decision, Weissman vs. Sissell, in which the court had observed that “[m]any non-custodial parents have some transportation costs to see their child—for parents living within driving distance of each other, for example, the non-custodial parent is likely to pay for fuel and other costs picking up or dropping off the child,
but these ordinary expenses usually do not warrant a deviation from the presumptive amount.’’
Appeals are expensive and, in the case of family law, difficult to win, so it is relatively rare to see a support case with so little at issue reach the Appellate Court.
This is not to say that the difference between $100 and $75 was insignificant to the parties in this case or to other divorcing parents. Certainly the Kavanah case has not closed the door on deviations for low-income individuals for whom in-state or other short-distance travel costs are burdensome, but it raises the bar for how the issue must be presented to the courts and makes it imperative that the court be reminded to make appropriate findings to justify why — in a particular case — transportation expenses that might be normal for some people are extraordinary in the context of the individual circumstances of the family before the court.