Family Law – FAQ Archives
What is Pro Se Divorce?
Pro se is a Latin term that means for one’s self or on one’s own. A pro se divorce is one in which at least one of the parties is not represented by an attorney. Pro se divorce proceedings are on the rise across the country. Many courts report the percentage of pro se litigants in all areas of the law, but especially in family law cases, is increasing dramatically. In fact, in some counties, a large majority of divorce cases proceed through court with only one party represented by a lawyer. It is becoming more common in some counties for the majority of divorce cases to have no attorneys involved.
Advantages of Pro Se Divorce
Parties who proceed with their divorce pro se cite numerous reasons for representing themselves in their divorce. Following are the most significant reasons given:
By far the most-cited reason for proceeding pro seis the cost of retaining an attorney. For low- and middle-income people, just paying an initial retainer is more than budgets allow. There are many important issues to be decided in divorce, and while some people can delay the filing until they can save the funds to hire a lawyer, many cannot. Therefore, they pursue their cases pro se in order to accelerate issues such as the determination of property ownership, custody and other issues in dispute.
- Disillusionment with attorneys
Another major reason that pro se divorce litigants represent themselves is disillusionment with attorneys, in general, or with their own attorneys, in particular. Some people, completely disenchanted with the legal profession as a whole, decide that they will not support the profession even when they can afford to do so. Many fear that involving an attorney will actually cause more disputes than would be resolved.
- Dislike of the adversarial process
More and more individuals are opting out of the adversarial process. Rather, they seek alternative dispute resolution options, settle their own disputes, draft their own agreements, or avoid court entirely.
Disadvantages of Pro Se Divorce
- Difficulty focusing on legal issues when emotions are involved
A major disadvantage to appearing pro se in a divorce case is that issues in divorce can be complicated. People are typically emotional about their own divorce and may have difficulty sorting through important legal issues. Legal issues intertwine with irrelevant, but overwhelming emotional issues. A divorcing parent may become extremely upset with a spouse who has a new partner. In order to punish the other spouse for perceived infidelity, the parent focuses on their child custody battle, failing to recognize that financial issues require attention, as well.
- Paperwork is complex
As in all civil litigation, which has developed with the constant involvement of legal professionals, the language and processes of divorce often read like a foreign language. Even in counties where the courts provide fill-in-the-blank pro se forms, parties often do not know what information should go in the blanks or how to proceed with filing and service of the documents.
- Denied access to justice
Many who proceed to divorce pro se discover that they are less likely to be heard than their represented counter-parts. Because they do not know the ins-and-outs, pro se divorce petitioners may be shuffled off to the side by an understaffed clerk of court’s office; issues may go unaddressed for lack of guidance from someone with knowledge and experience in the process.
- Mistakes can have long-term consequences
Because divorce affects the finances of both parties, any mistake by a pro se party can cause long-lasting negative financial consequences. One area in which pro se litigants make the most frequent, and sometimes the most costly, mistakes is regarding tax issues. Failure to deal with the consequences of some tax issues may create extra tax expense to both parties for many years to come.
Challenges for Courts and Lawyers
The increase in pro se divorce filings has created some challenges for courts and court personnel. A clerk of court is often the first to be confronted with the challenges of pro se litigation. Because they must remain impartial, and cannot risk the appearance of bias toward, or against, any particular party, court personnel perform a balancing act between providing access to the courts and providing legal assistance to all parties. The parties may fail to recognize the difference between seeking information regarding a court procedure versus asking questions that call for legal advice. This is frustrating for a pro se litigant and court personnel.
Judges often find that it is easier to deal with a case where neither party has representation than where one party is represented and the other is pro se. A court in that situation walks a fine line, seeing that both parties receive a fair hearing while staying within the boundaries of impartiality.
Pro Se Forms and Other Assistance
Because of the consistent increase in pro se divorce cases many courts have attempted to simplify the process for residents in their jurisdiction. Numerous courts now provide fill-in-the-blank forms with detailed instructions. These may be available from the clerk’s office, or from pro se clinics set up by the court or by a local bar association. Some jurisdictions offer assistance by volunteer attorneys in clinics designed for pro separties.
In many areas of the country, attorneys and other professionals set up nonprofit or for-profit agencies that provide pro se assistance at reduced fees when parties either do not want to hire, or cannot afford to hire, attorneys to represent them in divorce.
The number of pro se divorce actions is only expected to grow. Clerk of court offices, judges, attorneys, and other stakeholders will continue to confront the associated challenges. Pro se divorce may be a solid alternative for some people. However, for complex, emotional or disputed divorce matters, an experienced divorce attorney may be the best option.
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