Returning to our discussion about Self-Help Forms, you must follow the instructions. If your case fits within the mold of these forms, and if the instructions clearly address your situation, and if you do everything that you are required to do, then this system may hopefully work for you. There are some real significant pitfalls to self-representation.
**Please refer to the following information about some of the concerns you may face when you are representing yourself:
- Do not expect the Court Facilitator, or the other party or parent, or her/his attorney to do something that you should or must do. For example, if you do not agree to what is offered by the other to settle the case, then someone has to get the Court Clerk to schedule the trial on the Judge’s or Magistrate’s calendar, or your case may sit in limbo without any Orders being entered.
- Do not expect the Court, whether a Judge, Clerk, Magistrate or Court Facilitator, to give you a break because you are not a lawyer. Pro se (self-represented) parties or parents are held to the same degree of knowledge and competency as is an attorney with 20 or more years of trial experience, and you are required to give the Judge or Magistrate the right information and in the right manner.
- These forms, particularly those that may become the Court’s Order, by agreement or contested trial, such as the “Separation Agreement” or the “Parenting Plan,” require you to try to fit your entire situation into the form. Maybe the form will fit, but oftentimes it does not fit because your situation has unique circumstances or problems.
- Instead, you may find that some critical provisions or language that you need to have included in those documents, which become the Court’s Order, to resolve some aspect of your situation, are simply not in the form: if you know what is missing, then that form can be modified to include those additional provisions. The problem arises when you do not see what is missing, or do not anticipate the future problem, or do not know how to say it in the form, but that provision is necessary to resolve the problem if and when it occurs! Without it, well, you can be out-of-luck!
- One major example of this Form vs. Fit Dilemma occurs when people agree to the popular joint decision-making provision in the form: what that actually means and requires from you, and how it works, are not stated in the form, and the form has no provisions to govern what happens if decisions cannot be made, or if one party changes his/her mind and does something different without mutual agreement, or when you cannot get into Court for two or three months but the decision (such as getting the child registered for school) has to be made without any delay, and Mediation has not helped. And, oftentimes, you will not know what is missing from your Orders until the need arises and it is too late! Lastly, there are simply many cases when joint decision-making is just not appropriate, but provisions requiring the sole decision-maker to at least consult with the other parent before making the decision are not in the forms,
- Another significant problem arises when parents check the boxes for 50/50 parenting time, without realizing what this actually requires of them and, more importantly, what it requires of their children, whether it benefits or harms them. For example, a week-on week-off Parenting Plan may be fine for a 12 year old, but terrible for a 1 year old whose day passes like a week for you and will feel abandoned by the other parent at the end of just 2 days!
- The self-represented or pro se party will often find her/himself at a real disadvantage if “the other” gets an attorney. Do not expect that attorney to help you, or give you ideas, or advise or tell you what to do, etc. Their job is not to help you, but instead to do everything reasonable to further his/her client’s goals, against you!
- Also, when the other party does get an attorney, it is a strong sign that he or she does not feel right about what you are offering by way of settlement. Perhaps you will do well in Mediation, which may not occur until shortly before the trial, but if you do not, it may be too late to hire your own attorney, and you may not be allowed to continue the trial.
- It is very important not to be lulled by the Court “system” for pro se litigants into agreeing or stipulating to Orders, particularly when you have been involved in a violent relationship, or are separating from a controlling partner, and your habit and response patterns are still deeply ingrained. The Court System for self-representing litigants is designed to move these cases along, and get the people like you to agree so that the Court’s schedule is not clogged by these oftentimes time consuming cases.
- Additionally, please understand that who the other party was during your relationship is a good indicator of who he/she will be in the future, that oftentimes a person is on best behavior when talking with the Court Facilitator or Mediator, Magistrate or Judge. You must enter into these settlement agreements with caution, because that person may change back to who she/he really is after the Orders are entered by the Court and it has become hard to make changes.
- Lastly, what people usually complain about, 2, 3, 10 years down the line, is what could have been anticipated and largely prevented before the Orders were entered, by including the proper language in the final agreements or asking the Judge to put into the Orders when there is a contested trial. This is the emotional cost of self-representation, of the ongoing problems and emotional hurts, and what it does to you and the children involved. These losses never can be repaid, these harms can never be made right. Yes, you “saved” money by representing yourself, but now the financial cost to fix the problems is often much greater than it would have been at the inception, and, once again, some problems cannot be fixed, and the emotional costs can never be reclaimed!
As a general rule, if spousal maintenance (“alimony”) is going to be “waived” (given up) forever by each party, and if there are no child issues, if there is no home that is being purchased or any other property interest in real estate, if your divorce is limited to dividing marital property and debts, and if the marital debts are not tremendous or complex, and if neither of you says that the other was abusive and can still talk about resolving the division of assets and obligations, then you should be able to do a good job of achieving your Divorce by representing yourself. This is the simplest non-contested Divorce a person can have.
There are a lot of “if’s” here, or, stated otherwise, many problems can arise. The more complex the issues, the more emotions interfere, the more pitfalls arise, the greater the problems that occur. And, with good reason, Family Law is one of the most emotional fields of law.