Originally Published, Divorce Magazine, April, 2016.
In all my years as a lawyer, I've only encountered a handful of people who actually want to go to court without a lawyer. Typically, they either hope to save money or have had some bad experience with a lawyer (a few, however, have been right out of a Dickens novel: obsessed with constitutional arguments and spending too much time at the courthouse library). Most times, divorcing people are pro se or self-represented litigants because they have no choice: they cannot afford to hire a lawyer. If you have a choice and can hire a lawyer, do it. A good lawyer will usually save you money in the long run. Work with that lawyer to lay out a plan that is both affordable and effective to achieve the goals that work for you and your children.
For those people who cannot afford a lawyer to represent themselves throughout a divorce case but can afford, say, to hire a lawyer for a couple of hours, I always think a lawyer’s advice is a good investment, especially in the following three scenarios: before you file any papers in court, whenever you are served with court papers, and before you sign any agreement.
For example, let’s say that you and your soon-to-be ex work out most of your divorce issues at the kitchen table. You use a do-it-yourself separation or divorce agreement that has been approved by your local court or by a reputable legal services organization in your jurisdiction. This can be a great way to go for simple cases. However, after you’ve done the work (and before signing that agreement!), it’s a good idea for you each to hire a lawyer just for an hour to look over what you’ve written down so that your understanding of what the papers say is exactly what those papers actually mean.
Using a divorce mediator is also a good option to help you work out your agreement – especially if that mediator is experienced with and knowledgeable about family law (for example, by also being a lawyer).
If you really cannot afford a one-hour consult, take advantage of any free legal advice clinics. Sometimes, courthouses have a “Lawyer for the Day” program. Many private bar attorneys offer a 30-minute free initial consult; however, 30 minutes likely isn’t long enough for a lawyer to establish the facts of your case and offer advice on any agreement you’ve created, so you need to be prepared to pay for some of the lawyer’s time if you go this route.
Saving Money: True or Not True? The biggest plus to representing yourself in a divorce? You may save money on legal fees. I say “may” because if you lose your case, it might be possible for the other side to ask the judge to make you pay their legal fees. Also, if you end up settling a case without a lawyer looking it over, you might have problems later on (yikes, did you remember to put wording in about what happens to all that joint debt?) and need to hire a lawyer to make the agreement do what you want it to do.
Pro Se Works When a Case is Simple Being self-represented will save you money in cases that are relatively straightforward: for example, in a divorce without children, without real estate and without significant assets such as retirement plans. However, family courts are usually still designed for lawyers (unlike small claims courts, which are designed for self representation). These days, with the high number of pro se litigants, courts are beginning to become more user-friendly. There are also resources to help you navigate your way through the system, such as books on self-representation and online resources for your jurisdiction (legal-aid websites are often great resources).
Pro Se? Use a Lawyer’s Secret Weapon Half of what I do as a lawyer for my clients is outlining and working through a roadmap or game plan for what their next steps are going to be. Without a roadmap, any litigant will feel overwhelmed by the deadlines, the papers, and the procedure of conducting a divorce. It’s all completely new and completely bizarre. Doing it on your own without a roadmap is like being asked to file your taxes in another country using only an abacus. A roadmap gives you confidence.
The huge boost hiring a lawyer can give you is often just the confidence they will impart because they know (and aren’t terrified of) the next step. When you’re pro se, you need to make sure you know the next step, and the next and the next.
How do you do this without a lawyer? You’re going to have to learn how the court handling your case works. Legal aid, government, and some courthouse libraries offer helpful guidelines to the process. Ideally, you need to find resources that explain how to make a legal file, use a calendar so you don’t miss deadlines, and make a trial book will give you the ability to see the trees and the forest.
If you're pro se, you need to develop a roadmap for litigation. Write out the steps you need to take and mark them in both your calendar and your litigation book. If your case is relatively simple, if you have the right resources, if you’re well-prepared and organized, and if you know when to use a lawyer for advice along the way, you might be a good candidate for pro se representation.
- See more at: http://www.divorcemag.com/articles/successfully-pro-se#sthash.D1k0pjvR.dpuf
So, how do you hire the best family law lawyer? There are different kinds of family law lawyers.
There is the litigator. The litigator is aggressive, thinks on his feet, won't back down and will work hard so that you win. Only problem is, sometimes you don’t win. And the cost of a trial can be astronomical, sometimes $5,000 to $10,000 per day of court. On the other hand, when choosing your lawyer, you will want someone who knows the ins and outs of litigation. Isn't it wise to have the litigator's courtroom horse power under the hood just in case?
What about the settlement lawyer? This lawyer understands you and gets your case. And she also understands the other side. She's a smooth negotiator who’s going to make sure the other side thinks they are going to win too. Win-win is her goal. She's’s a master of the meeting, of artful wording and making everyone feel good. She probably is an experienced mediator too. Only problem is, is she any good in court if the other side doesn't want to talk?
What about the collaborator? The Collaborative Lawyer works with you and with everyone else to get the best result. He'll work with a financial advisor, a child expert, an appraiser. You’ll have the benefit of a team working to get your interests front and centre. And he'll work collaboratively with the other side so that they can become part of the solution, not the problem. The collaborator will draw options from a broader circle than the close purview of the litigator whose only goal is to win. But can the collaborator stand up and argue your case if need be? Can he call the other side’s bluff and go the extra mile when the other side refuses to collaborate?
A good lawyer will be able to talk about the advantages and disadvantages of litigation and settlement options such as negotiation, mediation and collaborative law because that lawyer has been there and done that. A lawyer who knows what is happening in Court, has a track record of settling cases and who is a certified Collaborative Lawyer is your best bet.
Start with a lawyer who understands all your legal options -- from litigation to mediation and everything in between -- because that lawyer has experience with each of those options. Then, work with that lawyer to choose the course that best suits you and your case
Devlin Farmer is a family law lawyer and mediator based in Northampton, MA.