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.
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.
Talk about being a day late and a dollar short! In Michael Farren’s 2010 divorce, the trial court found that Mr. Farren had destroyed his substantial earning capacity by physically attacking his wife and ordered that 75% of the marital assets be awarded to her.
Unhappy with the outcome, Mr. Farren filed a post judgment motion with the trial court on the 20th day after judgment –just under the wire to preserve his right to appeal the decision. But there was a problem. After initially stamping the motion “FILED”, the clerk noticed that Mr. Farren had forgotten to pay the required filing fee for a post judgment motion and faxed the motion back to him. Mr Farren paid the fee and re-filed the motion the following day but the trial court refused to hear the motion because of the late filing.
After an appeals process that has taken almost three years, the Connecticut Appellate Court in a decision released this morning denied his appeal, agreeing with the trail court that one day late is still late.
That wasn’t the only fatal mistake Mr. Farren made regarding the rules of procedure. The rules required that he file a memorandum of law together with his motion. He hadn’t. Ms. Farren moved to dismiss the motion and won. Mr. Farren argued that because he had corrected the oversight by filing a memorandum after the fact, no harm had been done. The trial court was not persuaded. Again, the Appellate Court agreed with the trial court that rules are rules and strict enforcement of them can never be error.
It is not possible to tell from the decision whether Mr. Farren was representing himself at trial. He appeared pro se in Appellate court but was joined by counsel on the brief. In a way it doesn’t matter whether the deadlines were missed by a pro se individual or by his lawyer. The result was the same.
Mr. Farren may never have been able to alter the division of assets in his divorce case had be been allowed to bring his appeal on the merits, but he didn’t get the chance. This was an appeal restricted to issues of procedure.
The role of the Appellate Court in situations like this is not to substitute its judgment for that of the trial judge, but just to determine whether the trial judge committed clear error or an abuse of his or her considerable discretion. In this case, all the trial judge had done was enforce the rules of court.
Lawyers often speak among themselves about the difference between deadlines and “drop-deadlines.” In this case, at least for Mr. Farren, failing to file his post-judgment motion within the 20 day appeal period was a drop-deadline — a lesson that took three years to hit home. Appeals are long, arduous, and costly and in the case of family law, not often successful.
In this era of increasing pro se litigation, it is important to understand that courts are not necessarily willing to bend the rules depending on the experience or lack thereof of those who appear before them.
In a decision released this week, the Connecticut Appellate Court upheld a ruling by the trial court that the court did not have authority to allow one member of an unmarried couple to buy out the other in order to separate their interests in a jointly held home — a solution routinely applied in divorce cases.
Dean Fusco and Robbin Austin had been in an almost 40 year relationship and for many years had shared a home that they had purchased together. When they broke up, Dean moved out of the home they had owned together for about 23 years and Robbin remained in the house but ultimately, like many estranged couples, they were unable to see eye-to-eye on a fair way of dividing their possessions including the equity in their house.
Since they were not married, Dean and Robbin could not take advantage of the relatively short process of divorce which typically takes between 5 and 12 months to accomplish except in the most hotly contested cases. Instead, they were relegated to the ordinary civil docket which often moves even more slowly. In order to receive his share of equity in the house, Dean had to file an action for partition — a procedure designed to separate joint ownership in real estate.
Not only is the procedure more cumbersome and, in most cases, more drawn out than divorce litigation, the remedies available are also limited.
Because Robbin was living in the home and wanted to remain there, she asked the court simply to determine what the house was worth and to award Dean his share based on the evidence of what he had contributed over the years both financially and in labor and management. That was, after all, what any divorce court could do and probably would if the parties were already separated.
The court said no. Historically, partition in Connecticut can have only two results. One is called ‘partition in kind’ . That means the property is literally divided up and each party walks away owning his or her part of the whole. That may work fine with open land or a farm, but can hardly work in a single family home.
The other option is ‘partition by sale’. This is used when the nature of the property doesn’t lend itself to a line drawn in the sand. So, because this was a single family home, that is what the court ordered.
Robin, who didn’t want her house sold, appealed the trial court’s decision.
There is a statute she pointed to that does allow the court to order one party the option of buying out the other even when they are not married and must go the partition route.
The statute did not apply here. The problem, according to the Appellate Court who denied the appeal, was that this third option only applies in a small class of cases in which the party to be bought out has an interest deemed to be “minimal”.
Even though Dean had contributed less than Robbin financially, he had worked on the house over the years and the trial court had not considered his interest to be minimal.
The lesson of this case is not that anyone considering buying a house with a significant other outside of marriage or civil union should marry. The lesson is that partners in real estate purchases, whether or not they are in love, need to have a clear written agreement about how their interests will be determined in the event that their partnership some day ends.
A new article on Forbes.com by Attorney Jeff Landers gives a nice overview of the reasons to gear up early once you sense that divorce may be one outcome of your marital problems.
While Jeff seems to suggest that divorce dirty tricks are the exclusive province of men, in our experience the risks and considerations he outlines in this otherwise informative article apply to both genders.
Landers points out that consulting an attorney early can not only provide you with a crucial checklist for contingency planning, but can also assure that your spouse won’t beat you to the punch by consulting several of the best area lawyers simply to disqualify them from representing you. He also notes that starting the action assures that if the matter goes to trial down the road, you will be the one, as the plaintiff, to present your case first.
Our clients in Connecticut should also know that by filing for divorce certain Automatic Orders take effect the moment the divorce papers are served on their spouse. These orders prevent the other party from doing a number of things including moving out-of-state with children, hiding assets, taking sole ownership of joint assets, changing locks on the marital residence, changing beneficiaries on existing insurance policies and more. The full text and a summary of the Automatic Orders can be found here on the Connecticut Judicial Website.
Bottom line? While you’re hoping for the best and working on your marriage it also makes sense to prepare well for the worst
Yesterday, the Huffington Post reported on a new study by sociologists Wendy Manning and Jessica Cohen concerning the relationship between cohabitation prior to marriage and the risk of divorce down the road.
As it turns out, the divorce rates among couples who did cohabit and those who did not are fairly equal.
While the authors of the study looked at factors such as gender, and level of committment — whether or not the couple planned to marry from the start — nothing in the report suggests that the authors considered whether the cohabitation took place before a first marriage or a second or subsequent marriage.
In Connecticut and many other states, the decision to cohabit before a second marriage carries an added risk — the prospect of losing alimony whether or not the new relationship works out.
In most cases, alimony terminates on the remarriage of the recipient. Under the so-called Connecticut cohabitation statute, things are not so clear-cut.
The Connecticut cohabitation statute uses peculiar language. Most importantly, it does not include the word ‘cohabit’. Instead it allows a court to suspend, reduce or terminate alimony if it finds that the recipient is living with another person under circumstances that alter his or her financial needs.
While the language is broad enough to include roommates, relatives, and even long-term guests, the courts have generally interpreted the statute to be focused on couples living together without the benefit of marriage.
As broad as the language of the cohabitation statute is, cohabitation can be tricky to prove especially when the couple separates in reaction to a motion by an ex-spouse to terminate alimony.
Still, the cost of cohabitation for anyone receiving alimony can be loss of a stream of income that might otherwise have continued for years. While courts have the option to suspend or reduce alimony on a finding of cohabitation, termination is far more common. Once alimony has been terminated, it cannot be reinstated.
So if the Manning/Cohen study tells us that cohabitation prior to marriage doesn’t reduce the incidence of divorce, at least for second-timers whose existing alimony is at risk, it might be wise to test a new relationship from a safe distance.
A recent decision of the Connecticut Appellate Court in the case of Felicia Pierot Brody vs. Cary Brody illustrates what can happen when the focus of a divorce case shifts from the issues in the marriage to the credibility, or lack thereof, of one of the parties to the case. In the Brody case, one thing that happened was that a lot of personal information became public – e.g., the husband’s awkward excuse for stashing condoms in his travel bag. Another consequence: Brody was ordered to pay $2.5 million in lump sum alimony even though his prenuptial agreement was meant to prevent that and even though the court was unable to ascertain his income. The trial took place in 2010. Recently the Appellate Court has ruled against Brody on all six issues he raised in his appeal.
For all most of us know, Mr. Brody might have told the truth from start to finish. However, the judge found him not to be credible which, as the finder of fact in a civil case, she was privileged to do.
Any judge will tell you that the best way to appear to be truthful is simply to tell the truth. Still, any divorce lawyer who’s practiced as long as I have, has encountered more than one client who is shocked to learn that their lawyer expects them to be honest.
What kind of lawyer wouldn’t help you hide your assets, understate your income or cover up your extramarital affairs? The answer: any good one. Yet, despite our best efforts, there are plenty of folks who remain unconvinced that honesty is the best policy even when the truth isn’t pretty.
The fact is, there isn’t much that happens in a marriage that the judge hasn’t heard before. Also, there can be two very different sides to every story even when the story is told by honest people. Your secret spending or infidelity might have led to enormous drama in your household, but in divorce court, might barely cause a ripple. Unless, that is, you deny the deed and the judge isn’t buying it.
Brody was not a divorce between members of the 99% although the basic issues were fairly universal. There was an issue of irresponsible spending — in this case buying one too many Ferrari automobiles , a wine cellar, and an airplane. There was an issue of suspected infidelity with no proof other than a few unused condoms. There was a business purportedly in decline — in this case the Defendant’s hedge fund. There were some “he-said-she-said” claims of verbal abuse. All matters divorce judges deal with day in and day out.
No case in Connecticut goes to trial without first going through at least one formal attempt at settlement usually with the assistance of a judge or court-appointed Special Master. Most cases settle before trial. Of the small percentage that do not, only a handful are appealed and those few find little success in overturning the decision of the trial judge.
In this case, the Defendant raised a number of issues that might have served him well during settlement negotiations. His business really had been embroiled in litigation with the SEC, for example, and the prenuptial agreement arguably offered him protection from a lump sum alimony award that would have to be funded by liquidating personal assets.
At trial, however, the judge found him not to be a credible witness. For one thing, he had admitted testifying falsely under oath in an earlier divorce proceeding that his wife had commenced but later dropped. Back then he had denied removing his wife’s jewelery from a safe, but had later come clean. Added to that was the finding that the Defendant had stonewalled during the discovery phase of the trial pretending that certain documents sought by the Plaintiff didn’t exist. With those two strikes against him, the case was pretty much over. The Plaintiff, whose personal net worth at the time of the marriage had been 29 million, and whose dividend income from her separate property was approximately $100,000 annually was awarded alimony and, tacitly, the designation of honest litigant.
Connecticut, like most other states, allows for divorce – or, as we call it in Connecticut, dissolution of marriage– on a number of grounds. These grounds include, among others, adultery, willful desertion, habitual intemperance, intolerable cruelty, and the irretrievable breakdown of the marriage. It is the last of these — irretrievable breakdown of the marriage — that is almost universally used in divorce cases in Connecticut. The legislature added the grounds of irretrievable breakdown in 1973 making Connecticut one of many so-called of no-fault states. Unfortunately, this designation causes some confusion among divorcing couples to this day.
With very few exceptions, lawyers now site no-fault grounds rather than fault grounds in even the most bitterly contested cases. This is because choice of grounds relates to only one of very many issues a court must decide in a divorce. That single issue is whether the divorce, itself ,will be granted. The intent of adding a no-fault language to the list of grounds for divorce was to make it unnecessary for parties to present evidence of wrongdoing in order to end their marriage.
While there were some who saw the advent of no-fault divorce as destructive to the institution of marriage, the common wisdom was, and remains, that, by making it unnecessary to present proof of a spouse’s faults or failures just to end a marriage, couples and families could emerge from the process with minimal damage.
Still, adding a no-fault grounds to the list of fault grounds was never intended to prevent the court from hearing evidence about bad behaviour in deciding other issues in divorce cases. Instead, it only meant that judges no longer had the option to deny a divorce if there had been insufficient proof of fault such as adultery or cruelty. If one spouse testifies that the marriage has broken down irretrievably, it has, whether or not the other spouse agrees. Thus, one issue of the case has been decided.
Aggrieved spouses may still produce evidence of all sorts of wrongdoing in an effort to convince a court to
award or not to award alimony, and to divide the marital property in a way that favors them. On issues of child custody and visitation, the court is obligated to resolve disputes based solely on the best interests of the children. Here, too, if one of the parties has behaved in a way that threatens the well-being of the children — everything from a pattern of disengagement, to neglect or abuse — proof of those behaviors are relevant to the interests of the children and are therefore admissible. For all of these reasons, referring to Connecticut as a no-fault state can be a bit misleading.
So, what is an uncontested divorce? It is one in which fault — whether or not it played a part in the breakdown of the marriage — is never brought to the attention of the court because virtually all issues, including custody, support, alimony, the division of property, and more, have been resolved by the parties, themselves. In those cases, the court is simply provided with an agreement which will be approved provided it is not manifestly unfair or detrimental to the interests of the children.
Even in truly uncontested divorces, the court has an obligation to review the agreement so all of the documentation that is required in contested cases, is also required in uncontested cases. This documentation includes properly completed financial affidavits. In families with children, the parties must also submit affidavits in which they swear that no other court is considering issues affecting the children.
Sometimes, cases are technically uncontested because one party is not participating. In these cases, the party seeking the divorce must also follow strict rules which assure that the absent party has been properly notified of the action and has been given a fair opportunity to participate.
Couples planning an uncontested divorce, and even individuals who expect that their absent spouse will not oppose a divorce, should still take great care to be sure that their agreement or, in the case of unopposed divorces, their proposal, is truly fair and reasonable and that it covers all of the issues that should be addressed. Although the court does have an obligation to review the agreement for manifest unfairness, it is extremely unusual for judges to interfere in any way with a completed agreement. Moreover, judges are not permitted to provide legal advice to the parties who appear before them. Also, it can be nearly impossible to correct certain portion of unfair agreements once they have been made part of a decree of dissolution. Therefore, even those preparing for an uncontested divorce will benefit for the advice of experience counsel.
If you ever find yourself in a lawsuit, your Facebook privacy settings may no longer matter.
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 and posts are 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 content is 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.