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Chapter 4. Representing Yourself
Question: When is it okay to proceed pro se, that is, to be your own lawyer?
Answer: When you know what you are doing.
Most judges don’t like to see a pro se litigant walk through the courtroom door. Most pro se litigants do not know what they are doing and therefore cause the day’s docket to back up. In my court, I had a sheet of paper that one signs if one wants an uncontested divorce heard during “uncontested” time from 8:30 a.m. to 9:00 a.m. daily. (This varies from court to court, check with your court’s coordinator or get a copy of the local rules from the court clerk to find out the details in your area.) When it is the pro se litigant’s turn, I frequently find several things to be a problem:
The petition is not in proper form. There is no service on respondent or no waiver signed. The waiver is signed before the petition is filed instead of after. The waiting period has not passed. The decree is not in proper form. If children, the child support provisions are not correct. If children, the periods of possession are not set out correctly. If property, the division is not clear. Various provisions may be drawn in such a way that they are unenforceable.
10. The decree may recite that the parties have an agreement, but there is no signature of the spouse on the decree or any separately signed agreement.
11. The litigant doesn’t know how to go through prove up.
(This may or may not be required in your area.)
12. The state required statistical forms are not completed.
Generally, I heard cases in the order in which they signed in. (If there are confidential cases, I will most likely save them for last when the courtroom has emptied). Most uncontested matters, if a divorce, take five minutes or less to prove up. If an unprepared pro se litigant signs up ahead of lawyers, they can cause those lawyers to be late to other courts because rarely does a pro se litigant’s prove-up take less than 10, 15, or even 20 minutes. Therefore, I would say only proceed pro se if you can do it quickly and easily and understand what you are doing. If you don’t want to hire an attorney, don’t arrive at the courthouse expecting everyone from the clerk to the judge to help you with your case. The clerk is not an attorney and cannot give legal advice. The judge has a law license but is no longer supposed to practice law. Some judges dislike the practice so much that they refuse to hear pro se cases.
If you are going to represent yourself, the best kind of case to do it in is where there are no children or property other than personal effects. The petition (an example of a simple Texas petition can be found in Appendix I) is relatively easy to construct. Your spouse can sign a waiver (Appendix II). The divorce decree (Appendix III) is also short and to the point. (Completed samples are provided in Appendix V as well as a statement to prove up divorce in Appendix IV.)
If you are going to represent yourself and you have children and/or property, I would recommend that you at least consult with an attorney so that you have some basic understanding as to what to be careful about. Each state has different rules governing the division of property and the custody of children. In each state, there are differences from court to court. You may believe that you and your spouse have the right to agree to whatever arrangement regarding the care and custody of your children you want, but in some courts, the judges will strike provisions if they don’t approve of them. They may even send you away to correct the decree and return another day.
Certainly, as far as child support is concerned, there are more uniform rules across the country than ever before because the federal government has gotten involved. If you have children and property, make sure that you have all the proper provisions set out in your decree regarding both or the court may not approve your decree. Even so, you run the risk of a persnickety judge not hearing the case because you have no lawyer.
There is another thing you can do, which is almost the same as representing yourself. You and/or your spouse can hire an attorney to draft all the paperwork for you, but otherwise not to represent either of you. You could file it yourself, procure the signature on the waiver yourself, and go to court by yourself with the papers you paid for. This is cheaper than hiring an attorney to do everything. I believe that there are variations on this, also. If you are interested in doing it at least partly by yourself, investigate your options with an attorney or several attorneys during your initial consultation. Not all lawyers will do this, so be sure to ask up front and if possible, get it in writing.
I know of at least one case where the parties had an agreement, took it to a lawyer to have it formally drawn up, paid the lawyer a couple of thousand dollars, and then the lawyer refused to give the paperwork to the person because the lawyer didn’t approve of the agreement. So beware of that and, also, if you get advice from counsel and don’t follow it, be prepared for it to cost you more later to fix the situation you got yourself into.
What to file and when. Every jurisdiction has rules about filing suits. Again, obtain a copy of the local rules as well as the Rules of Civil Procedure for your state. You begin by filing an Original Petition for Divorce, which also may be called a complaint or something similar thereto, in which you set out, among other things, who the parties are, where you live, the jurisdictional grounds, the grounds for divorce, whether or not there are children or property. After the petition is filed, for an uncontested divorce, you prepare a waiver of citation and give a copy of the petition and the waiver to your spouse. Your spouse should sign the waiver before a Notary Public and return it to you for filing in the court’s file. Lastly, bring the divorce decree with you at the final hearing. If you have an agreed decree of divorce, make sure your spouse has signed the decree. Also, if your state’s Bureau of Vital Statistics requires an informational form to be filled out, make sure to bring it with you to court.
Going to court alone. If you are unrepresented, you will have to appear before the judge by yourself. Some people prefer to have someone help them through the process. If you don’t have a lawyer, you can bring your mother, father, sister, brother, or best friend, but they will not be allowed to help you with anything except moral support unless they are licensed attorneys. So, before you go to court, find out what your judge requires. Does your judge require a prove-up from the witness stand? If so, be prepared to be sworn in and read the necessary statement into the record.
In my courtroom, I had two ways of assisting people who were not prepared to prove up their case. I gave them the file and let them read their petition into the record and then asked them what they had agreed upon regarding the children and the property. Or, I handed them a prove-up sheet to read into the record.
Closing Documents. Other than the (final) Decree of Divorce and the Bureau of Vital Statistics form, there are several other possible closing documents that you may need. Of course, the more complicated your divorce, the more closing papers you will have. Some documents have to be recorded in the county records or given to the clerk in the appropriate offices. Often, there is a fee that must be paid to have some documents issued or recorded. Some of these documents are as follows (and again, this varies from state to state and depends on what you have that needs addressing):
Change of Name Certificate, Qualified Domestic Relations Order, Deed, Power of Attorney to Transfer Automobile, Release of Escrow Funds, and, if children, Employer’s Withholding Order for Child Support, and Medical Child Support Order.
If you are representing yourself, it is up to you to find out what documents you will need, draw them up, file them, pay the fees, and have the appropriate documents issued or recorded. In case you don’t think that this is important, consider the possibility of your spouse’s employer’s benefits section disbursing your share of your spouse’s retirement to your spouse because they never received notice that you were awarded a percentage of it. Or consider the fact that your former spouse could borrow money against the property you were awarded in the divorce if there is no recorded deed transferring ownership solely to yourself.
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