If you are moving towards a divorce with your spouse there may be two situations that impact your family that have led you towards the belief that you are capable of representing yourself in the divorce. The first would be that you want to keep things “friendly” with your spouse. This is an understandable goal to have. You have built a life with this person, had children, purchased property and committed yourself to him or her. If at all possible you do not want to exit the marriage on a sour note. You catch more flies with honey than vinegar, as our grandparents would tell us.
The other situation that may be present in your lives that could lead to you wanting to forego hiring an attorney would be that you lack the resources to do so. You take a look at your bank account and see that you barely have enough in the bank to pay your mortgage next month. The idea of hiring an attorney to get divorced is not something that you can wrap your mind around. Divorce is already unpleasant. Having to hire an attorney to get you divorced seems like it would make the process even worse.
So here you sit. Reading online articles about divorce and how to protect yourself and your kids. You do not want to be unfair to your spouse but at the same time you want to do what is right for you. How can you be sure that you are making the right decision? That is what we are going to discuss today and in the coming days here on our blog.
The basics of representing yourself in a Texas divorce
In the legal world, a person who represents themselves in a case is known as pro se representation. I’ll start by telling you that it makes a ton of sense for you to hire an attorney if you are getting divorced. Even if you don’t think it’s necessary, even if you think it will lead to more fighting and even if you think you can’t afford one, I would recommend you do your research and make an educated decision on this subject. Do not rely on the advice of folks who are well meaning but maybe not all that educated on the subject who try to steer you towards making a mistake.
You will be expected to follow the same rules and procedures as an attorney during your divorce if you choose to represent yourself. There are not two sets of rules for folks going through divorce: one for lawyers and one for pro se parties. Judges will not accept documents filed incorrectly, late or full of mistakes just because you didn’t go to law school and pass the Bar exam. What you may find is that for all the online resources out there, you can’t work your way around the fact that you don’t have experience in this subject matter.
The other thing to keep in mind is that, especially if you have children, divorces offer an opportunity for you to not only make mistakes in the short term but in the long term as well. Financial and family related mistakes can cost you money, time with your children, your retirement security and many other potentially important areas to your life. Hiring a lawyer is not a guarantee that everything in your case will work out exactly like you want them to, but it is a really good start.
If you do ultimately choose to represent yourself in a divorce case, then I want you to have some basic information to start your case. This is not legal advice, however. Do not think that you can read this blog (or any other) and think that it can be a substitute for actual legal representation. You will find that you can read as much as you want online but if you have to make your way to court an attorney will feel more comfortable than you and will be a more effective advocate.
Why wouldn’t you want to represent yourself in a divorce case?
Let’s start with why you wouldn’t want to take on the responsibility and risk of representing yourself in a divorce. As I mentioned earlier, you will have to go through the same processes in the divorce as a person who is represented by an attorney. There is no short course for pro se litigants. The expectation of the judge in your case is that you will follow the processes, know the procedures and the law just like an attorney. Missing deadlines, leaving information out of a pleading (legal document) means that you may harm your case a great deal. Think of little mistakes that can be made in your own line of work and how impactful they can be. The law is no different. Attorneys pay attention to the details better than just about any other profession,
Do not assume that because you have a pretty smile, a sad story or a kind face that a judge will take pity on you and give you case a leg up. Judges, from my experience, typically get frustrated when pro se litigants appear in their courtrooms. Judges are incredibly busy. Their dockets are full to the brim and they do not want people involved in cases who will delay proceedings and generally make their lives more difficult. I think as humans we can all relate to their feeling this way.
A judge cannot force you to find an attorney, nor can the judge refuse to hear your case if you are not represented by an attorney. However, at the end of the day I do believe you put yourself at a distinct disadvantage in your case if you are not represented by an attorney. This goes doubly if your spouse has an attorney and you do not.
Don’t think you have the money for an attorney? Think twice about that
Assuming that because you are not wealthy that you cannot afford an attorney is a mistake. There are always options available to you if you are not a person of means before having to “settle” on representing yourself in a divorce case. If you want to force yourself into a situation where you are representing yourself in a divorce then by all means, that’s your choice. However, I am here to show you that this is not the only option for you and that you can opt to do otherwise.
Many attorneys will work with clients who do not have the money to pay for their circumstances ordinarily. These attorneys understand that legal services can be expensive and will want to contribute to the wellbeing of their community by extending discounted or free legal services towards people like you. However, these attorneys usually do not advertise this online. You will need to seek attorneys out, tell them your situation and be willing to work with them on any proposed methods of payment. If you find yourself thinking that you can’t hire an attorney it will become difficult for you to turn that mindset around and consider that you can hire an attorney. Keep a positive mindset and you will be more welcoming of potential help from the people around you.
Those attorneys will often times be willing to give you advice, help you draft documents and even review settlement documents with you. All of these limited scope of representation arrangements can stand to benefit you a great deal and minimize your costs as well. I think a lot of people enter into divorces assuming the worst. Their costs are going to be sky high, attorneys are all out for themselves and they are going to get screwed over by the system. Do not allow this type of negativity to enter your mindset. Approach divorce with a mind that is ready to take on challenges and also problems solve.
Getting a divorce is serious- treat your case that way
No matter what your personal beliefs are on divorce, you need to understand that the State of Texas treats divorce as a very serious matter. The procedures and systems set up in your immediate area to handle divorce cases are not basic or to be taken lightly. You need to understand that if you enter into representation of yourself in a divorce with an attitude that you are going to see what happens and it will all work out in the end, things will not end up going well for you (at all).
You may think that you are emotionally ready for divorce. You may be at wit’s end with your spouse and are more ready than ever to move on from the marriage. You may have talked to your kids about getting a divorce and feel that they are ready for what this means for them and your family. However, it is my experience that virtually nobody who enters into a divorce is fully aware of just how impactful of a change it is for the family and for you as an individual.
In the event that you have bank accounts, investment accounts, stocks that you own, a house, rental properties, real estate of other types, or any other significant financial assets then it would make all the sense in the world to hire an attorney to represent you in a divorce. It is difficult to argue that you cannot afford an attorney when you own a great deal of property. Do what it takes to find an attorney who can assist you. You have a great deal more to lose in a divorce than the average person.
Starting a divorce in Texas
The process for filing a divorce in Texas will be the same whether or not you have an attorney to provide you with representation. You will need to draft (write out) a Petition for Divorce which specifies all of the important people in your case (spouses and children, basically) as well as the foundation on which you are basing the divorce. If you have special requests or need to seek additional relief from the court you would make note of that in the petition, as well. In this day and age, you can find guides all over the internet to help you draft a petition for divorce in Texas.
Next, once you have your petition completed you would have a citation filled out by the clerk’s office where your petition is filed. The clerk will draft the citation and attached it to the petition which will be served upon your spouse. That is how he or she will likely learn about your divorce. You will need to hire a professional process server or constable to pick up the completed documents from the court and deliver them to your spouse. To file for divorce in Harris County you must have lived in the county for 90 days and in Texas for six months.
How do you draft legal documents?
Drafting of legal documents is probably the most important part of your divorce. Ignore what you see in the movies and on television- you likely will not get to have a Perry Mason moment in the courtroom. Likely is the case that you will have very brief opportunities to even be in a courtroom during your case. However, you stand to make huge mistakes in the drafting of documents if you do not know what you are doing. In tomorrow’s blog post I will begin to share with you some information on how to draft documents that will be filed with the court in your divorce.
In the meantime, if you have any questions about the material that I shared with you today please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed family law attorneys offer free of charge consultations six days a week where we can address your questions and problems directly in a comfortable and pressure free environment.