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Divorce Truths - I Want To Represent Myself
Not a Good Idea
In an uncontested divorce where all documents may be prepared by one spouse's attorney, there are those individuals who will not hire an attorney to review the documents prior to signing them. There is usually a provision in the agreement that states clearly the attorney did not represent them, and they have been advised to seek independent counsel of their own choice prior to signing. Once the agreement is signed and filed with the Court, it is binding. It is more prudent for you to pay an hourly rate and have an attorney of your own choice review documents which you will have to abide by, or later risk contempt of court. Their attorney has no duty to represent any of your interests. Don't fall into the mistaken belief that they have spent any effort looking out for you. Hire your own attorney. This is a document which you have to live with.
Headed to Court
If your divorce is contested and you are headed to the court, you must give careful consideration as to whether you should hire legal counsel. Although you are legally within your rights to represent yourself in your divorce and/or custody action, think about what you stand to lose. Honestly ask yourself is it a smart idea? Better yet, ask yourself, can I possibly prevail? If your spouse has an attorney, evaluate your disadvantages.
Below are only a few basic issues that may arise during the course of your divorce litigation. There are many, many more which an attorney could educate you on. These contribute to the judge's rulings. Are these issues you will be able to master?
There are legal deadlines that the Law affixes for responding. There are adverse consequences if you fail to do so. How much time and access to a law library do you have to figure this out?
Do you know the Rules of Evidence, and what you need to prove your allegations? Do you know how to get your evidence admitted once you get to court? Do you know how to obtain the evidence before you get to court? Attorneys don't just walk into court and pick up their file. They have spent countless hours preparing for each case.
A Court of Law
The Rules don't change just because you aren't an attorney. Do you know what the Law is on the issues in your case? That's not as basic as it sounds. Those are the parameters for your trial which everyone but you will be working within.
Do you know how to compel your witnesses to court? Do you have to pay them? Do you know what hearsay is, or how to avoid asking questions that call for hearsay and elicits inadmissible responses? What, if anything, do you have to disclose to opposing counsel prior to trial a list of your witnesses?
Do you know what questions to ask to of your witnesses to prove your case? Do you know whether or not they know the answer? Do you know what to do if your witness becomes hostile, turns against you or doesn't tell the truth?
Questioning Your Spouse
Do you know which questions to ask your spouse? Do you know what objections to make if their testimony is improper?
When it is your turn to testify, how well can you represent your case? Can you establish any credibility with the judge? Do you know what questions would be improper for your spouses' attorney to ask you?
Do you know what is proper to say in an opening and/or closing statement?
Evaluate Your Competition
You are competing with an attorney who may have studied and practiced law for many years. You are competing because you are asking to be treated as an attorney. You get no special consideration in the outcome because of your unfamiliarity with the legal system and the law.
Depending on how little you know and how much opposing counsel knows, they can successfully object to everything you say. They may effectively keep the majority of your evidence from being admitted.
Who Do the Factors Favor?
Chances are your spouse's attorney has been before this judge many times if they practice exclusively in domestic litigation. Even if this attorney is the nicest person in the world, they are being paid by your spouse to win because in court there are only winners and losers. Their client is sitting right there next to them. A vengeful spouse expects their attorney to respond in kind.
At a minimum, the opposing attorney knows the law extensively, knows what they are doing, knows evidence, knows procedure, knows how to question witnesses, is comfortable in the courtroom setting, doesn't freeze up, and doesn't neglect the important issues or questions.
Realistically evaluate your probability for even marginal success. Lawyers know the law. You don't. Enough said.
The Judge Isn't Your Attorney
The judge is there to evaluate the evidence that is placed before him and to make rulings on the evidence. There are judges who may cut you a break, but what if you get one who doesn't? The judge has to make sure they are not perceived as acting as your legal advisor and helping you in a manner that may be perceived as prejudicial to your spouse.
Emotional Pressure and Stress
Courtrooms are stressful for the parties. Trials are intimidating. Having an attorney beside you can minimize this. You will feel more protected because you are.
You spouse's attorney may try to make you appear incompetent. They may manipulate your testimony to the point you appear to be untruthful. Can you maintain your control? When the attorney hammers questions at you will your stress level increase to the point where your testimony may become confusing?
Opposing counsel knows your weaknesses from having talked to your spouse. They know if you have a bad temper and how to exploit it. If you are financially irresponsible, they are going after that. Your weaknesses are fair game. They have a plan, and they know how to execute it.
You Don't Just Open Your Mouth and Talk
Because you do not have an attorney, you don't have the benefit of being prepared for the difficult questions you will be confronted with. The opposing attorney is going to control your testimony with their questions. That is cross-examination at its best, or worst in your case. You could leave court without ever accurately presenting your side. That's your job as your own attorney, but you don't know how to do it.
You Are Not Happy with the Ruling - Is This a Surprise?
Unfortunately, many clients contact me for advice AFTER their hearings/trials. They now admit it was a huge mistake not to have an attorney. Sorry, you don't always get to do it over. Going back and trying to resurrect events after a trial is difficult and expensive with no guarantee of success.
Hire an Attorney!
Now, while you still have options, be honest with yourself and acknowledge what you have to lose. How vulnerable are you to go it alone? If you have nothing to lose but your pride, that's good because you cannot realistically expect a favorable result. You are gambling with your future in an arena in which you have no specialized education, no perfected skills, no training and no experience. It is simply unrealistic to believe you will do as good a job as an attorney, regardless of how right you think your cause to be.
Consider a Legal Consultation Prior to Court
At a minimum, hire an attorney for a consultation so that you can gain some insight into what to expect, and how to minimize your exposure. They will be able to critique your situation and make recommendations, but this is not a substitute for having legal representation. The courtroom is not law school.
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