When Does Filing a Pro Se Divorce Not Work?
Key Points
  • Filing a "pro se" divorce is best suited for an uncontested divorce. Many divorces eventually reach the state of being uncontested, but if spouses are not making an effort to work together to reach a common goal of settling his and her divorce fairly, filing "pro se" is not the best choice.
  • As unfortunate a divorce is, it becomes much worse when a divorce case is litigated and even worse when litigated without proper legal representation from an experienced divorce lawyer.
No one should attempt a pro se filing in an adversarial divorce, one where each spouse is unable to come to any agreement.

Divorces involving large marital estates are more likely to become adversarial than those involving little or no property or debt.

An adversarial divorce (contested) is one in which the spouses cannot come to an agreement on issues such as, but not limited to, the division of property, division of debts, spousal support, child support, visitation, and custody. An adversarial divorce may mean a divorce trial, requesting the court to make a ruling. By comparison, in a nonadversarial divorce (uncontested divorce), the spouses agree on all the issues and do not have the need to have a judge rule on how to divide property or establish orders regarding spousal support, child support or custody.

In general, divorces that are nonadversarial cost less, are less emotional, and move through the court system faster.

When one spouse retains legal counsel, the other should give very serious consideration to doing so as well. An adversarial divorce between a pro se filer and a practicing attorney invites trouble for both parties.

Many spouses begin divorce in an adversarial way and then, before the actual trial or hearing date, arrive at an agreement. Often divorcing parties prepare for trial even as they continue to negotiate. The substantial advantage of a divorce settlement is that there are no surprises. Both parties have agreed to it and can live with it. Both spouses avoid the trench warfare of litigation. Many divorcing spouses reach a settlement at the courthouse just hours or minutes before trial. It is almost as if it turns into a game of chicken, of who will cave or give in first.

The term litigation is reserved for a battle in court before a judge. By definition it is adversarial. Divorce is civil litigation that pits spouses as combatants in a war for money, goods and the custody of children.

Of all the scenes in courtrooms, divorce trials can be among the saddest and sorriest because they become trench warfare where the contestants battle each other for victories over desolate terrain.

Litigation is the most expensive way to end a marriage. Any other route to the dissolution of a marriage -- mediation, arbitration, pro se uncontested actions -- is less expensive, financially and emotionally and mentally, than divorce by litigation. In addition to costing a fortune, a divorce trial virtually assures that the former spouses emerge from it with a lasting hatred for each other that makes parenting their children difficult, if not impossible.

One source estimates that a two-day divorce trial with "the most basic expert testimony" can easily cost more than $70,000. This includes the initial meeting, discovery, trial preparation, pretrial motions, court time, expert fees (custody expert, actuary, vocation expert) and court reporter.

Going into litigation, a lawyer can only guess about the cost, but a two-day trial may entail 100 hours of legal preparation at his or her hourly rate. Even a one-day trial with no expert witnesses can cost tens of thousands.

An estimated 90 percent of the court cases settle before the trial begins, even as they stand by for battle action and continue to negotiate via written settlement offers and perhaps settlement conferences. All of this adds an intangible cost to litigation -- stress.

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