Most of us realize that divorce – especially one in which children are involved – is best faced with the assistance of an experienced family lawyer. This is equally true when self-employment, substantial assets or –just as important — substantial debt complicate finances.
Still, while divorce rates reportedly fell in the depths of the Great Recession, marriages held together by nothing more than inadequate cash flow cannot last forever. Proof of this is the skyrocketing percentage of divorces being prosecuted and defended without benefit of counsel.
If you find yourself in a situation where divorce is both inevitable and urgent, and the funds to retain a lawyer are completely out of reach, there are still steps you can take to protect your interests at minimal cost as a pro se litigant. Here are 6 ways to survive divorce without formal legal representation:
1.) Visit your state’s judicial web site. You can usually find it easily by searching your state’s name and the word “judiciary” or “official web site” There you will find a wealth of information on a variety of subjects many of them specifically created for do-it-yourselfers. The judicial web site will also provide you with links and templates to forms that will be needed in your divorce action. Simply browsing these forms may alert you to options you hadn’t considered. If your spouse has access to funds that are out of your control, one such option is to file a motion asking the court for an allowance from your spouse sufficient to secure legal representation once the case is underway. While not in such an immediate way, a temporary order of alimony might also help level the playing field.
2) Ask for fee waivers. Filing fees and fees for process servers can run into hundreds of dollars. If you qualify, you may be granted waivers of these fees by simply filing the appropriate application and supporting financial information.
3) Become a smart observer. Don’t wait until your hearing is scheduled to visit the courthouse. Learn when motion sessions are being held and when contested divorce cases are being heard. These sessions are almost always open to the public. Once you have sat through several contested hearings and a few uncontested divorces, you will know much more about the process and you will also be alert to some of the hurdles you might otherwise not have anticipated.
4) Find out whether your courts have dedicated pro se assistants. If so, these individuals may be able to help you sort through the paperwork to make sure you have all the documents the judge will require in order to go forward with your hearing. Be careful though. Pro se assistants, just like other judicial personnel, are not allowed to offer you legal advice. This means, for example, that while they can tell you whether your written agreement is in proper form, they cannot advise you about whether it is fair or whether you have covered all of the issues.
5) Don’t skip the discovery process. Although non-lawyers cannot sign subpoenas, court clerks generally can do so on your behalf. If you are counting on your estranged spouse to provide you with full information about income, bonuses, overtime, retirement accounts, spending history and more, you are making the most common and, in the long term, costly mistake that pro se litigants make –one that handily outstrips any short-term savings realized by foregoing legal assistance.
6) Consider engaging a lawyer as coach. This can be a win-win situation for both lawyer and client. The lawyer’s risks are minimized when he or she remains in the background and is not attorney of record. This is because once a lawyer becomes attorney of record in a case courts can require the lawyer to continue working on the case even if he or she is not being paid. Even if the lawyer is eventually allowed to withdraw from representation, losses have already accrued that may be uncollectible or, at best, difficult to collect.
From the point of view of the litigant, using a lawyer as coach has a number of benefits. While a lawyer acting in this capacity cannot attend hearings or negotiate with others on your behalf, he or she can help with any and all other aspects of preparing for negotiation or trial. What’s more, since a lawyer acting as coach is not responsible for the ultimate outcome of the case, she has the freedom to assist in limited ways according to your own needs and budget. For example, one client may want legal assistance just for preparing documents and for guidance in gathering financial information about the other party. Another individual may feel comfortable sorting out the numbers but need assistance in preparing for a hearing by organizing exhibits and questions for witnesses, or by planning overall strategy and argument to the court. Still others who have reached a tentative agreement with their spouse might simply want a lawyer to review the financial affidavits and draft agreement and offer an opinion about whether it is fair and complete. Finally, it is not unusual for litigants to seek legal assistance – either coaching or full representation only after they have run afoul of procedural rules and feel that they have reached a roadblock in their case.
Some lawyers charge their normal hourly rate for divorce coaching but others may be willing to charge a substantially lower hourly rate for these so-called unbundled services. Lawyers are quite accustomed to discussing fees; so never feel shy about asking. Our own firm charges less than half our regular hourly rate for divorce coaching services.
While self-representation – at least at the outset of a case – might be unavoidable, it is no cause for surrender. Every new challenge brings with it the possibility for ingenuity and growth.