Gathering Evidence When Representing Yourself in Divorce
Pro Se Divorce Litigation, Obtaining a Divorce Without an Attorney
Pro Se divorce litigation means you are representing yourself in your divorce case, without an attorney. The procedures that you must follow are the same if you are Pro Se, except you will be responsible for filling and filing out all the legal forms. Some of the factors that play a role in a person deciding on a Pro Se divorce are:
- 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 in your divorce case consider the legal aspects, not only the emotional aspects of the divorce. 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, negative consequences if not handled properly.
You have the right to represent yourself, to be a Pro Se litigant but, the divorce process can be complex and I highly encourage anyone who can afford representation to seek it, if at all possible. If you choose to go Pro Se and represent yourself in your divorce case you should become familiar with your state divorce laws, the current version of your states Rules of Civil Procedure, your states Family Court Codes and the rules that are followed in your local county court.
Your best resource of needed information will be a state law library; most have websites and your local Court Clerk’s Office.Beginning The Pro Se Process:
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 have been served and now you will have to respond.
Below are things to consider before filing an Original Petition for Divorce:
- Where to file the Original Petition.
- How to file.
- Although most states have no-fault divorce laws, you may want to plead grounds such as adultery.
- Notifying your spouse that you have filed for divorce.
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 and two extra copies to your local Court Clerk. The clerk with stamp them with the date and file the original with the court. The two copies will be date stamped and one 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.
The fee 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. If you need to do this, 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 extremely careful when filling out the forms and filing your petition. I’ve already discussed the fact that divorce is not only a legal issue but an emotional one also.
The courts are only interested in the legal aspect of the divorce. If you feel, due to misconduct in your marriage that you are due a larger portion of marital assets or alimony please keep any inflammatory language or details of improper marital conduct out of the petition. 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 (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 on the Respondent with a formal notice of the filing of the petition prepared by the court clerk.
- If you can’t locate the Respondent can’t be located you may request that he/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.
Now that you have filed the petition for divorce and had the respondent served 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./li>
- 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.”
You will also be able to send a list of questions called “Interrogatories” to the Respondent during this phase. State laws differing on how long the Respondent 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.
- Take part in 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 there will be no need for divorce court.
If mediation didn’t work and there are unresolved issues 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/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. In most cases the judge will go out of his/her way to help a Pro Se litigant with courtroom procedure. If, you are on your best behavior.
- 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!
Video: Divorce: Responding to a Divorce Petition- Griffith Law
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