Divorce comes with many responsibilities and concerns. One of the biggest decisions you will make will be to hire an attorney. They will represent your interests in court, so you want to be sure they know what you want and are willing to work hard to achieve it. On the other hand, you can also enter court as a pro se litigant.
To be a pro se litigant means you are representing yourself in your divorce trial, without an attorney. The procedures that you must follow are the same if you were to hire an attorney, but, obviously, you will be responsible for the details that an attorney typically would take care of, such as completing and filing legal forms. If you are not sure about moving forward as a pro se litigant, take a look at some factors that other people consider:
- They can’t afford to hire an attorney.
- They are getting an uncontested divorce, have no children or marital assets and don’t want the added expense of an attorney.
- They become dissatisfied with their divorce attorney and feel they could do a better job on their own.
Before you take on the job of representing yourself, you must focus on the legal aspects of your divorce case, not the emotional aspects of your split from your spouse. If you are not able to keep the two separated, it is best to hire a divorce attorney. Issues such as dividing marital property, deciding child custody, negotiating alimony and determining child support can have long-lasting consequences if not handled properly.
You have the right to represent yourself, but the divorce process can be complex. Anyone who can afford representation should seek it out from a professional, if at all possible. Your best resource of needed information will be a state law library; most have websites and your local Court Clerk’s Office. If you choose to go pro se and represent yourself in your divorce case, you should become familiar with the following:
- Your state's divorce laws
- The current version of your state's Rules of Civil Procedure
- Your states Family Court Codes
- The rules of your local county court
The Pro Se Process
We break down the steps for divorce litigation and how to approach it as a pro se litigant.
The spouse who files for the divorce is called the Petitioner. The other spouse is called the Respondent. If you are the petitioner, you will file an “Original Petition for Divorce.” If you are the respondent the petition will have been filed, you will be served and have to respond to the petition. Below are things to consider before filing an Original Petition for Divorce.
Where to File
Contact your Court Clerk’s Office or learn your state divorce laws to find out the resident requirements before filing. In most states, you have to have been a resident of the state for at least six months to a year before you can file for divorce. Your county will also have rules regarding residency. You must file your petition in the county where either you or your spouse have lived long enough to set up residency. Once this has been determined you may obtain the needed forms from your Court Clerk.
Filing Your Petition for Divorce
To file your petition for divorce you should hand deliver the petition for divorce to your ex and two extra copies to your local Court Clerk. The clerk will stamp them with the date and file the original with the court; the other copy will be returned to you for your files. The other is used to notify the Respondent that a petition has been filed.
There will be a fee for filing the Original Petition for Divorce; it will vary from court to court. Since you will be expected to pay this fee at the time you file you should call ahead to determine what the fees will be in your case. If you can’t afford the filing fee you can file an affidavit with the court asking the court to waive the fees. You can pick up the affidavit at the same time you pick up the petition for divorce. You will want to have it filled out and ready to file at the same time you file your petition for divorce. If a judge approves your affidavit, your filing fee and other court costs will be waived.
Grounds for Divorce
If you feel you have valid grounds to file a petition with grounds such as infidelity, desertion, or abuse, you should be careful not to allow your emotions to dominate as you fill out the petition forms. The courts are only interested in the legal aspect of the divorce. If you feel that there was misconduct in your marriage that warrants you a larger portion of marital assets or alimony, be sure to remove inflammatory language or details of improper marital conduct from the petition. To use an adage, keep it short and sweet. For instance, to plead the ground of physical abuse, you should say, “Petitioner requests a divorce on the grounds that the Respondent has committed multiple acts of physical abuse.” Don’t say, “Petitioner requests a divorce because the Respondent beats me up every time he/she has too much to drink.”
Notifying the Respondent
You must notify your spouse (also known as the Respondent) that you have filed a petition for divorce. Your Court Clerk can answer questions you have and let you know if there are county-specific that need to be followed. Most courts require you to notify the respondent in one of the following ways:
- Serve the Respondent yourself and have him/her sign a waiver saying he/she has been served.
- Hire a process server to serve the petition to the Respondent with a formal notice of the filing of the petition prepared by the court clerk.
- If you can’t locate the Respondent, you may request that he or she be served via publication or posting. This can only be done with a court order and your court clerk will know the process for serving via publication or posting in your county.
Before You Go to Court
Now that you have filed the petition for divorce and served the respondent you will need to take the following steps to move the process along:
- File a notice of hearing for temporary orders. If you have marital assets, children, a mortgage to pay, and other financial needs you may file a motion with the court for temporary orders. Orders that will take care of any financial issues you have between the filing of the petition and the final court date. Temporary orders normally cover child support, child custody, temporary alimony, and such. If a hearing date is set you will once again be responsible for making sure the Respondent is notified.
- File a notice of hearing to set a date for the final divorce hearing. Some states have a waiting period before a final court date will be set. This is something you will learn by studying your states divorce laws and communicating with your Court Clerk. Again, when a hearing date is set you are responsible for making sure the Respondent is notified.
- Begin the discovery phase. “Discovery” is a legal mechanism designed for gathering information about either party to the divorce. During discovery, you will be able to request documents from the Respondent such as, bank statements and any other documents you feel are needed. This is called “disclosure.”
- Send "interrogatories," if applicable. You will also be able to send a list of questions, called interrogatories, to the Respondent during this phase. State laws differ on how long the other party has to respond, but all states have a certain time frame in which you can expect a response to your questions. You can also set up any depositions you wish to conduct during this phase. Call your Court Clerk to ask if there are certain forms that have to be used or research online for sample forms or actual court documents related to the discovery process.
- Consider mediation. Most states have made mediation a part of the divorce process. Mediation is an alternative to the formal process of divorce court. During mediation you and the Respondent meet with a court appointed third party to negotiate and try and resolve any conflicting issues such as division of marital property, division of pension funds, and alimony. It is your opportunity to negotiate the best possible divorce settlement you can. If all issues can be resolved in mediation, there will be no need for divorce court.
If mediation was not an option or did not work for you (where there remain disputes in your divorce,) a trial date will be set. During the trial, both parties have the chance to argue their case before a judge. The judge will then examine all the evidence and make a decision based on what he feels would be a proper settlement and outcome. If you go to court as a pro se litigant, the following things should be taken into consideration:
- Dress conservatively.
- Speak politely, clearly, and loud enough to be heard by all participants.
- Address the Judge as “Your Honor” at all times.
- Never interrupt anyone. You may object to a line of questioning but don’t interrupt an attorney or the judge during discussions. You will get the chance to give your opinion after the discussion is finished.
- When address or referring to someone in the court refer to him or her as “Mr.,” “Mrs.,” or “Ms.”
- Feel free to bring someone to court for support. Keep it to a minimum though, there is no reason to show up for court with your entire family and all your friends.
- Take your lead from the judge and be on your best behavior. In most cases the judge will go out of his or her way to help a pro se litigant with courtroom procedure, but they will be harsh on anyone who disrespects the court.
- Check your emotions at the door. Stick to the legalities and proving your case with the proper documentation. A judge isn’t going to make a ruling based on how many tears you shed!