Top Six Tips for Representing Yourself in a Divorce or Custody Matter
If you retain a divorce lawyer, she will do nearly all of the communicating, drafting, filing, serving and the like If you're going to represent yourself, heed the following advice.
1.) Just Because You've Been Victimized in Your Marriage Doesn't Necessarily Entitle You to Special Treatmend During the Divorce Proceeding.
A lot of potential litigants have the "the judge will see it my way" mentality. They believe that the judge will see the emotional wreckage, and do whatever they can do to help this poor soul. This is 100% false. For instance, you might have a text message from your estranged spouse's best friend with a video recording of him or her using drugs. Drug use--when it comes to custody matters--is highly pertinent and will be given heavy weight by the judge. However, if you do not know how to lay and evidentiary foundation for the text and video footage, or know how to authenticate it (this is the process where you provide proof that it is what it purports to be), then it won't even reach the judge. While it obviously should be automatically admitted into evidence, it is not. If the judge just lets in otherwise inadmissible evidence without the proper foundation a decision in your favor could be reversed upon appeal. Your common sense viewpoint of "this is so important, the judge will consider it," flies in the face of the stringent evidentiary rules.
2.) Don't Expect Any Favors From Your Judge
I often see that pro per litigants expect a break from the judge and actually ask the judge for legal advice during a proceeding. Judges are strictly prohibited from giving legal advice, so don't expect that you can limp along during a proceeding with the judge acting as your crutch.
3.) Avoid Ex Parte Pleadings and Communications
"Ex parte" is Latin for "one sided." An ex parte communication occurs when one ide presents a pleading or other communication to the judge without presenting it to the other side. It's a huge no-no to send something to the judge without the other side seeing it first. As mentioned above, the sentiment of "if the judge can just hear my side of the story, she will agree." is a dangerous presumption. There is a procedure for telling the judge your story, and you must abide by that procedure or risk being sanctioned. Part of this involves giving everything you want to communicate to the judge to the other side and giving him an opportunity to respond. When I was in active practice, I would occasionally see a self-represented opponent send a letter to the judge, and then the judge has to disclose to the attorney on the other side what the letter says and give her a chance to respond. Simply put, it puts the judge in an awkward position and should be avoided.
4.) Learn The Proper Procedure for Service of Pleadings
Everything you file must be served on the other party, with the exception of the Complaint (the document that initiates the divorce, and requires personal service). Service means the process by which you send pleadings and papers to your opponent, and the process by which you prove you did so. Service must be done a specific way and contain specific proof. Many jurisdictions have the option of electronic service through a court site that you must sign up for. Other jurisdictions have mandatory electronic service. Others still rely on the USPS mail with a certificate of service.
I once represented a man who filed a child support modification himself, and he wanted me to represent him at the hearing. He personally handed the Motion to Modify to his ex-wife, and couldn't understand why this constituted improper service, especially since he insisted that he had a witness see him give her the papers. He couldn't understand that he had to mail it to her with a certificate of mailing, which he was then obliged fo file in order for service to be proper. If you're going to represent yourself, become familiar with the rules of service and follow them to the letter or else you may face delay or even sanctions.
5.) Behave In a Collected and Professional Manner In Court
Going to court can be incredibly frustrating and emotional. I used to always prepare my clients that they're going to hear half-truths, mistruths, and blatant lies while the other side is speaking in court. Regardless of your opponent's behavior, you must be respectful and wait your turn to speak. If you have something to say, wait until there is a lull in the conversation and ask the judge, "Your Honor, may I please say something?" Always call the judge "Your Honor" or "Judge" and say "please" and "thank you." Also, stand hen you address the judge. Keep a calm tone and remember that the judge has immense power over your life. Be as respectful as possible, even if you don't like what the judge is saying, because there is a chance you'll have to appear before that judge again, and you don't want to make a bad impression.
6.) Document Everything
Read that again! If you represent yourself you may have to deal with an attorney when the other side has one and you don't. Some attorneys love the opportunity to pounce on a pro per's ignorance. Attorney's document everything Written notes are considered more reliable in the weeks and months ahead when memories can be rendered unreliable. The best rule when you're representing yourself--especially when the other side is repped--is to put everything in writing. This takes time and energy, but if you don't put a telephone conversation into writing, the other party can argue that a different conversation took place. And this doesn't necessarily mean that the other person is unscrupulous or conniving. It may bean that two people came away from a conversation with two different interpretations. After every phone call, send a letter to the effect of, "this letter serves to confirm our conversation this afternoon of March 2, 2021 where we agreed that..." and then recount all of the important details about the conversation.