Divorce Without an Attorney
Will you be able to divorce without having to hire (or worse) talk to an attorney? Are you that lucky? Maybe, maybe not … ?!
Here are some thoughts for my pro-se Divorce-I-Y’ers.
As ever, I practice in teeny little R.I. and you should always, always check with an attorney in your particular jurisdiction because every place is different. Unless the only attorney in your area has a walrus mustache then just go it alone.
In Rhode Island, a married couple always can file for a divorce, argue it, and draft the Orders without an attorney. The question is whether they ought to. Is it wise?
1. Be kind. To clerks, to one another, to the judge, to the pigeons outside the courthouse. A bit of honey goes a long with in the Family Court, where kindness is rare and can be traded like cigarettes in Alcatraz.
2. Get the damn proof of service of process and don’t leave home without it. Service of process is (often) the easiest thing but the one that is most often screwed up. If YOU are the Plaintiff (the one who filed the divorce) then YOU have to make sure the other party is served. Period. Full stop. No excuse will get you over, under, or around this simple truth. It is insufficient if you do not have your spouse served, in-hand, with all of the pleadings you filed with the Family Court and you show the Court proof from the sheriff / constable / circus clown that served him or her.
“We talked about the Court date” or “She knows to be here” or “He didn’t want to come” or “He is home eating Frosted Flakes” or “I have the Summons in my car” are all common refrains in the Family Court and all of them will get you nowhere.
And yes, I have in fact heard each of these used in Court.
You have to, have to serve them and you have the responsibility to ensure the proof of service if returned to you and presented to the Court. Preferably before your hearing date. Don’t lose it. Don’t use it as a napkin. Keep it in your sock if you want to.
3. Kid stuff: The short hand is if a married couple either (a): has no minor children together OR (b): has a REAL AGREEMENT as to how to handle the children (parenting time, custody, support, holidays, phone calls, how / when the child meets significant others, yada) then you may very well be able get through the process without counsel, but…
4. It helps to know ahead of time exactly what the MARITAL assets are, if you are dividing them, and how. Who gets what? If you don’t know whether an asset is marital, call an attorney. We are lonesome alcoholics and we are always looking forward to your call. The call should be free. And,
5. It helps to know ahead of time what the MARITAL debt is, how you are assigning it. Who gets what If you aren’t sure who is supposed to pay for which credit card then, again, call an attorney.
Judges are patient with parties who represent themselves but they also have a calendar to get through. The judge does not expect you to be polished but you will have to wade through a considerable amount of emotionally taxing testimony in a fairly short amount of time. Make all decisions before your Court date, including which shoes to wear. Be sure that you and Spouse are in accord on everything, or, if not, know EXACTLY what you disagree upon and the genuine reasons why.
Know in advance what issues, if any, you and your spouse do not agree-upon. Crystallize.
After the kids, stuff, and debts, you must also address health insurance, taxes, alimony, and maiden name change.
The Plaintiff will testify first.
If you can have civil, meaningful discussions with your spouse about these topics, you can divorce on your own.
Then, if you can get past the hearing, one of you will have to draft TWO ORDERS (the first, a Decision Pending Entry of Final Judgment, the second a Final Decree of Divorce) and file them in a timely fashion.
If you do not have the funds to hire an attorney outright, consider paying a much smaller fee in exchange for key guidance at critical phases of your case.
You should never try to divorce without an attorney if: the other party has an attorney and that attorney makes you uncomfortable because of their mustache, there is a current or recent history of domestic violence, you are unsure of whether certain assets are marital, you and your spouse own a home and cannot agree on what to do with it, you have tried going to Court on your own already and maybe angered the judge.
If any of these apply it is better to hire an attorney and leave your stress for her to deal with. We are both therapists and stress-eaters. Just call one of the 800 divorce attorneys in your area under you find one you are comfortable with.