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Representing yourself in Divorce Court - the basics
Family Court NYC
Representing Yourself in Court
Would you be confident representing yourself in Court?
Would you be confident representing yourself in Court?
Pro se Representation
In the United States, pro se legal representation is representing yourself in a court, instead of getting a lawyer to represent you. Pro se is Latin for "for oneself" or "on one's own behalf".
In the United Kingdom and Australia and New Zealand, the phrase is "litigant in person".
Every person has the right to self representation. However, in some places government legal aid is provided to people for certain types of matters. For instance, people who are charged with serious criminal matters will often have legal aid if they cannot afford a lawyer.
The other thing to know about self representation is that the Courts do not really like it. They understand that need for it, but Courts are usually busy places with many matters in their lists. When there are no lawyers in a matter to assist the Court, things take much longer and the lists are not cleared quickly.
However, divorce is one of the few areas where self representation can be quite normal. Sometimes, divorces can even be heard 'on the papers'. This means that you might not have to go to Court, the matter can be dealt with in your absence by a judicial officer in chambers, instead of a hearing.
If your matter is like this, or if it only involves a few small issues and there will only be one hearing, you can save lots of money by doing it yourself.
Nuckolls County Court - Courtroom 2
Divorce "on the papers"
You might not have to go to Court to get your divorce. In Australia, if the divorce is by the consent of both parties, and there are no children of the relationship (this includes adopted and step children) under the age of 18, and there are no other issues, such as property or money issues, it can be done in your absence by filing out some forms, serving them and getting the other party to sign them, and paying just under $600 in filing fees. It does take several weeks or months for it to be finalized, but once your forms are filed, all you do is wait.
Before you get a lawyer for your simple divorce:
- Check the requirements in your jurisdiction by going to your local Family Court website
- Look for a fact sheet about divorce
- Read the applications form to see what sort of information you need to provide
- See if you qualify for a divorce on the papers
- See how much it will cost to file
- If you are in doubt or it looks to complex, then think about spending money on legal advice
- Or go to a local community legal centre for some free advice
- Some community legal centres will help you fill out the forms
- The forms should be typed and not written, affidavits should be in the correct form - usually you can download them from the Court website and type your information in
What if I have to go to Court for my Divorce?
OK, if you have a slightly more complicated divorce, specifically where you and your former spouse have children under 18 (including adopted and step children) then you may have to go before the Judge to get your divorce.
The reason for this is that the Court has an obligation to ensure that the welfare of children is being met by the parties. If dependent children are involved, you will have to explain (usually in the forms) who is responsible for the care of the children and what contributions are being made. If you and former spouse have no custody disputes and have not had to get a parenting plan, often this is just a simple appearance before the court where a few questions might be asked and then the application is granted. I have seen these sorts of things take less than five minutes. If this is all it is going to be, you might be better off saving your money and doing it yourself instead of getting a lawyer.
You have all seen courtrooms in the media. The Magistrate, Judge, Justice or Registrar (judicial officer) sits on 'the bench' which is usually raised and at the rear of the courtroom.
In front of the bench there are often spaces for bailiffs, court clerks, transcribers and other junior officers of the court.
Then facing the bench is the 'bar table' where the plaintiffs, defendants, respondents and prosecutors sit to make their applications to the Court. Often if the parties are legally represented, the applicant and the defendant will sit at the bar table alongside their lawyers.
Depending on your jurisdiction, the defendant/respondent will sit to the left and the applicant/plaintiff will sit to the right. Prosecutors generally sit to the right.
Behind the bar table and also facing the bench are the seats for the public. Sometimes the Court is closed which means that no one except those with good reason to be there are allowed in.
Off to one side, depending on the type of court, will be a gallery where the jury sits.
On the other side there might be a dock for prisoners to sit in.
There will also be the witness box, where whoever is giving evidence will stand/sit to address the Court.
If you are appearing as an applicant in a divorce matter, you should go to the right side of the bar table when your matter is called by the clerk or bailiff and address the bench from there.
Go and watch a few matters just to see how they go - this will be of great assistance if you plan to represent yourself.
Why is Family Law so Expensive?
Because it is rarely dealt with quickly due to the points below:
- It is procedurally technical and more complex than areas like crime, so you have to get each step and each form perfect
- It can be difficult to get to the real issues because of the emotions of the parties, sometimes there is not a lot of truth being told initially
- The welfare of any dependent children must be investigated by the Court
- It often involves a lot of negotiations and mediations over time as well as valuations and investigations of the parties true positions, especially re tax and superannuation matters
- Division of things like businesses, the family farm and superannuation are by nature complex
Complex divorces involve simultaneous applications dealing with property division, what used to be called 'custody', and spousal and child maintenance. These applications should be settled before a divorce is granted and are often dealt with at the same time.
If you and your former spouse cannot agree on who the children should spend time with and how the property of the marriage should be divided you might have to go to Court to litigate a solution. I do not recommend this. You will have to do family dispute resolution and come up with a parenting plan before going to Court anyway, so why not try to agree on all the problems?
In Australia you are looking at least 25 thousand dollars for the most basic dispute. I saw one matter where the applicant spent over 100 thousand dollars on a trial that he then appealed. He ran out of money and then had to do the appeal himself. In the end all of the marital property was sold to pay the lawyers.
A good way to start trying to sort this out is to go to mediation. If that doesn't work get a lawyer to negotiate a settlement with the other party for you. Then you don't have to face the other person and risk getting angry and getting no where and having to go to Court, where no one really wins (except the lawyers).
The do it yourself divorce is best suited to situations where there is no conflict between the parties about property, children and maintenance. If your divorce has complex issues, at least get legal advice before proceeding.
Representing yourself in Court
Etiquette - Being Respectful in Court
It is vitally important that any litigant is respectful in Court. A little bit of respect will go a long way.
- Respect can be shown by dressing appropriately.
- Wear a suit and tie to Court if you are a man.
- A woman should wear the sort of clothes she would wear to an important job interview or other formal occasion, like a citizenship ceremony.
- Children should never be brought to Court, they are disruptive and also they may hear and see things that no child should be exposed to.
- Do not wear hats, sunglasses or earphones in Court.
- When you first enter the courtroom, if there is a judicial officer present, the custom is to bow or nod your head towards the bench.
- When the judicial officer enters or leave the courtroom, stand up
- When you speak to the judicial officer, stand up
- Make sure your mobile telephone or other electronic device is switched off or to silent
- Do not eat or drink in a courtroom
- Always address your remarks to the bench, never directly to the other side
- No matter what the other side is saying, never interrupt, your turn will come
Court is an extremely formal place
Court is one of the most formal places in any society. Court is not really like Judge Judy!
Court is the place where some of the most important decisions about peoples' lives are made by men and women who take their roles extremely seriously. It cannot be stressed how formal this environment can be, depending on the Judge and on the type of case.
I have seen litigants being censured from the bench for not wearing a tie and on the other hand I have seen litigants being asked to approach the bench for a more friendly style of communication. You never really know what could happen and even if you have been watching the Judge to learn about his stye, he still could be having a bad day. Never assume it is going to be relaxed or conversational. Always be prepared for the worst!
Importantly, Magistrates, Judges and Justices have the powers to lock people up for contempt. Contempt includes poor behaviour and lack of respect to the Court. A person can be in contempt whether they are before the Court for a minor offence, such as a parking matter, or murder. Contempt is about the way a person behaves in court and not the reason they are there. I have seen Magistrates and Judges send people down to the cells "to cool off" for a few hours or a few days because the person spoke to the bench in a disrespectful manner.
Family Law in Ontario
How to speak in Court
It is very important that you speak clearly and concisely. Courts are busy places and will appreciate it if you get to your point quickly.
- Stand up when you address the bench and always speak loudly enough to be heard throughout the room, but don't shout.
- Speak politely and address the Court respectfully as "Your Honour" or "Registrar" if it is a registrar. I saw one poor man get sent to the cells for addressing a Magistrate as "Mate," the Australian equivalent of "Buddy" or "Pal".
- If the Court does not want to listen, respectfully insist "You Honour, with respect, my submission is that..." Remember that you may not get another chance to get your point across.
- Remember to speak at your own pace, if you hurry you might forget to say something you wanted to say. So long you don't waffle, you should be heard.
On the Day in Court
Always arrive at least half an hour early. Sometimes it takes time to get through security, so factor this in. Know which courtroom you need to to be at. You can find this out by looking at the Court's website - they usually publish lists the day before advising which courtroom you have to go to and which Judge or judicial officer will be conducting the hearing.
Courts often hear things in lists, so there may be no set time for your matter alone, it might be in a group with the other matters. You might have been advised to attend at the time when the list will start. If this is the case, what happens is that the judicial officer will go through the list and do the very short matters on the spot and also provide a time and sometimes another courtroom number for the longer matters. In some Courts this process is referred to as 'callover'.
When your matter is called on, you will need to identify yourself and tell the Court what you are seeking and answer any questions. In a simple divorce application that involves no conflict, this is all it may be. Your former spouse will often be there to confirm the information. If you have filled out the forms correctly and provided the right information, your decree should be granted.
Represent yourself in Court
The nuts and bolts of self-representation in court are presented in this detailed, sensible book. The authors describe the legal process from the investigation of the case through the collection of a judgment, with an emphasis on what happens in the courtroom. Bergman and Berman-Barrett share the procedures and methods a lay person needs to survive in an environment that is not necessarily friendly to nonattorneys.
Getting legal help to prepare
If you are not confident, there are plenty of good books to help you. If you are still not confident you can pay a lawyer to help you do all the paperwork and to give you advice about how to proceed, without paying for the lawyer to appear for you.
Sometimes the most expensive part of the process is the actual hearing at Court.
This is a way to gain some confidence and save some money. Most lawyers are willing to settle documents for you.
But if your knees are knocking at the thought of going to Court and standing up before a Judge, better get a lawyer!