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 modified absent a showing of actual fraud.
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.
Statistics maintained by the Connecticut Judicial Department make it clear that victims of domestic violence may not be asking family courts for the protection they need. Instead the first court to act is often a criminal court following the abuser’s arrest.
According to the Connecticut Judicial Department, criminal courts in that state issued 8,478 family protective orders between July 1, 2011 and September 30, 2011. By contrast, family courts entered only 2,146 family restraining orders during the same period. Of these, only 804 were extended beyond 14 days. The rest were either allowed to expire or were rescinded after a hearing. While the numbers vary a bit from quarter to quarter, the ratios between criminal and civil orders regarding domestic safety remain fairly constant.
While statistics can’t tell the whole story, this does mean that the great majority of court orders offering protection from abuse are issued only after an arrest. Under Connecticut law, courts may issue protective orders at their discretion at the time of arraignment and before criminal responsibility has been determined. This benefits victims of abuse in the short run. The problem comes when the criminal case is disposed of and the protective order is no longer in effect. Then, unless the victim of abuse seeks protection in family court, he or she will be back at square one.
The situation is not much better in family court where the great majority of initial applications for relief from abuse are granted for 14 days pending a hearing but less than half are then continued for the full six-month period provided by law. Again, there are many reasons for this. In some cases, victims whose applications were granted without a hearing fail to appear for the mandatory follow-up hearing two weeks later. In other cases, after hearing the testimony of both parties, the judge is unconvinced that the restraining order is warranted.
Protective orders issued by criminal courts and restraining orders issued by civil courts are not a panacea, but they help. Victims of domestic violence need to be better educated about their options for getting civil restraining orders and keeping them in place as long as danger remains. What these statistics teach us is that—like it or not—the first meaningful opportunity to offer this education is often when abusers finally land in criminal court. This happens through the office of the Victim Advocate.
The bigger challenge is to reach those for whom that will have been too late. The goal must be to reach victims before their abusers are arrested, by which time irreparable damage may already have been done.