We oftentimes receive a call or question from someone who wants to know if they can represent themselves in a divorce. The answer is “yes.” Technically, you can represent yourself; however, there are some basics you should know.
1. You are pro se (pronounced “pro-say”)
This is the Latin term for “for one’s own behalf; in person.” It means that you do not have an attorney, and you are representing yourself. You will hear this term kicked around by everyone during your case. This is what they are referring to.
2. Understand that you are acting as your own attorney: Part 1
This might seem obvious, but there are some pretty big responsibilities that come with being an attorney. You are expected to follow all the rules of the court and rules of civil procedure. This means that you have to know and pay attention to filing deadlines, rules of evidence, the court process, and everything else that goes along with it. While judges and referees are generally “gentler” on pro se parties, after choosing to represent yourself, you are held to those requirements. Down the line if something in your case goes awry, you cannot use the excuse, “well, I didn’t know because I am not an attorney” or “but Your Honor, I didn’t have an attorney.” Nope. Sorry. Not an excuse.
Part 2 – Family law/divorces in general might seem pretty easy. You fill out the family law court forms, check the boxes for what you want to do with custody labels and parenting time, and you’re done. However, you must understand that there are consequences that will flow from your agreement.
Example: Custody Labels – If you agree that your spouse is going to have sole physical custody of your child, this is often a permanent decision. Absent very specific circumstances, you cannot modify custody. Sometimes people come in with a divorce decree that gives the other parent custody, and they want to change it now. They want custody, but they made their original agreement to just “get it over with.” Even if it is something that we can help them with (which we might not be able to because they do not meet all the requirements to change custody), it will cost a lot of money to modify custody. There will be multiple court hearings and, potentially, a trial at the end of it all, which is usually what people representing themselves are trying to avoid in the first place. And, even then, they might not win.
Part 3 – You also have to understand that there are consequences to the way you divide up your property. It can be easy to transfer titles of vehicles and homes (i.e. get the other person’s name off of it), but did you know that this does not remove you from the mortgage or the loan on the car? There are huge problems that can arise after the divorce is finalized if these types of agreements do not take into account what happens to the loans or mortgages.
Example: Awarding One Party the Marital Home. If husband says to wife “go ahead, you can keep the house. I don’t care. There is no money in it anyway, and you will have to pay for the mortgage and everything else.” That is fine. However, down the road, if wife stops paying the mortgage, the bank looks at who is still listed on the mortgage. If husband is still on the mortgage, the bank will sue husband. This is a very real scenario that absolutely happens. What can husband do about it? He can go back into family court and sue his ex-wife. However, if she isn’t paying the mortgage, it is probably because she does not have any money. And, if she doesn’t have any money, it is going to be pretty hard for husband to collect anything from her.
Another agreement the husband might think is, “fine, my wife can have the house. I hated that house anyway, and I am going to go buy a cool condo in downtown. I always wanted to live in a trendy loft in the North Loop neighborhood of Minneapolis.” Not even addressing the impact a move could have if there is a custody or parenting time (visitation rights) agreement regarding the children, if the husband’s name is still on the mortgage, then it typically is still calculated into his debt-to-income ratio. You can count on the bank weighing this information against you when applying for a new mortgage. If the husband is purchasing a property, his debt-to-income ratio may keep him from purchasing another property. Even though the wife is going to pay the mortgage and she is going to be responsible for the home, the husband is still liable if she does not make those payments.
3. Check Your Mail
Court correspondences, correspondences from the other attorney (if there is one), orders from the judge, Notices of Hearings, etc. will all be mailed to you. Check your mail. It is your responsibility to make sure that the judge, Court Administration, and your spouse’s attorney all have your current and correct mailing address. If your mailing address is different than your residential address, make sure that everyone knows about it. If the other attorney mails you documents and you blow past the deadline to respond because you didn’t check your mail, that is considered your fault. The only responsibility your spouse’s attorney had was to mail the documents to you. He or she does not have to confirm that you actually read it. This means you might not get to respond to the paperwork, you might miss out on being able to submit evidence, or even worse, in some cases, it might mean that whatever the other person was asking for will get granted since you did not respond.
4. Check Your Email
Judges, their clerks, sometimes even Court Administration use email and electronic filing (e-filing). It is happening more and more frequently. While you do not have to e-file your documents just yet (meaning send your documents to the court electronically), you might be expected to respond to emails dealing with scheduling hearings or other administrative issues. Again, like your mailing address, it is up to you to be diligent and check your email. If you do not use email, let the court and your spouse’s attorney know. Don’t feel obligated to provide the AOL email account that your friend set up for you twenty years ago when you first got internet on your home desktop computer. You probably do not remember the password for that anyway.
Additional Tip: If you are going to email the other attorney or provide an email address to the court, think long and hard about which email you are using. You may not want to use your work email, because your employer will see those communications. You may also not want to use your personal email if you get tons of spam and will never see the important emails. Or, you may not want to use a terrible email address that makes you look unprofessional or not serious.
E.g.Ihatejudgesandwillneverpaychildsupport@gmail.com or Ipreferwineoverparenting@yahoo.com. When it comes to emails, remember to use some discretion. Also, try to keep the words “babe”, “stud”, and “hottie” out of the email address. Better yet, set up a new email account specifically for the proceeding. Everyone should heed this advice. I have personally received emails from other professional offices before where the receptionist had an email address akin to email@example.com. Seems like a great place to work.
5. Beware of Ex Parte Communications
Ex parte (pronounced ex-partay) communications are any uninvited communications to the Judge (or the Judge’s clerk) and any communication with the Judge (or the Judge’s clerk) without copying the other person (either your spouse or, if they are represented, their attorney) on the correspondence. This means you cannot and should not call the Judge to discuss your case, send the Judge letters, send the Judge emails, or do anything else without the Judge telling you that you can do it. This goes for the Judge’s clerk as well. There are very specific rules for these matters during your case.
Example: Temporary Exclusive Occupancy – You typically have to file a motion (a written or oral application to the court for a decision to be made in the filing-party’s favor) if you want your spouse to move out of the house during the divorce. You cannot just call the Judge or send a letter and ask.
Example: My Spouse is Acting Like a Jerk – There is a time and a place for you to tattle on your spouse, depending on the severity of the situation. If you’re repeatedly contacting the Judge improperly, you will not only hurt your credibility and your case, but you may also be subject to sanctions (a fine when you get in trouble with the Judge).
6. Social Media is Your Enemy
If your divorce involves kids, be very aware that everything you post on the internet is going to be up for grabs in a custody proceeding.
Example: My Spouse is Acting Like a Jerk: Part 2 – If you’re posting negative comments about your spouse online or bragging about how you were out partying on a night you were supposed to be with the kids, someone will see it, someone will print it, and it will now come up in the divorce, especially if there are pictures. If you have to vent about the other person, do it over coffee with a very close friend. Don’t broadcast it to the world.
7. There’s No Such Thing as a Free Consult
Well, there is, but your idea of “consult” and an attorney’s idea of “consult” may be two separate things. Sometimes, when people represent themselves, they might want to run things by an attorney, which is great. Some attorneys offer a free initial consultation. That consult is to meet you, get to know you, briefly discuss your case, and then discuss the fees of hiring that attorney. That’s it. The attorney CANNOT give you legal advice. He or she is not your attorney. He or she cannot tell you what you should or shouldn’t do in your case. They might give you some general information, but that is it. If you want an attorney to give you legal advice, the truth is that they are going to make you pay for it.
8. You Can Hire an Attorney on a Limited Scope Basis
Many attorneys offer a “limited scope representation” option. This is where you can hire an attorney for a couple hours of their time or a portion of the case to help you out. This is usually a cheaper option, especially if you have drafted all of your own documents (or filled out the court forms) and just want to double check that you did everything right as well as what will be the consequences of your agreements or legal positions. I strongly encourage people to do this. Paying the few hundred bucks now can save you thousands down the road when you need to hire an attorney to fix things. It is worth it.
9. Your Spouse’s Attorney is NOT Your Attorney
For the most part, the family law attorneys in Minnesota are pretty nice. They’re ethical; they’re reasonable. Sometimes they are even downright pleasant. But you must remember that your spouse’s attorney is not your attorney. Your spouse’s attorney cannot give you legal advice. He or she is under absolutely no obligation to make sure your i