Once you've decided to get divorced, the next step is deciding how to accomplish it. This includes whether you and your spouse can work together to achieve an amicable divorce, whether you'll use mediation, or whether you'll go through the court process from start to finish.
If you've decided to forego mediation, you'll need to decide whether to hire a matrimonial attorney or whether to go it alone. Although every state allows you to handle your own case, there are pros and cons for representing yourself.
Pro se or pro per divorce
A pro se divorce is where a litigant represents themselves for the divorce without the aid of an attorney. "Pro se" and "pro per" mean the same thing—they refer to self-representation in court, and the words pro se and pro per come from Latin phrases. While most states use the term pro se, some states, like California, use the term pro per, either of which means to represent oneself in court from start to finish.
Pro se litigants are responsible for filing the papers properly, serving the papers correctly, and completing all the divorce papers required for their state. If you do anything incorrectly, the court could dismiss the case, require you to redo papers, or require you to re-serve the other party.
Additionally, if your spouse has an attorney, it's important for you to hire one to level the playing field. Proceeding pro se while your spouse has an attorney is not advisable, because your spouse's attorney doesn't represent your interests and will try to get you to agree to terms you wouldn't have agreed to if you'd had an attorney.
The pros and cons of pro se divorces
There are pros and cons to being a pro se litigant, and the cons outweigh the pros. In some cases, you have no choice except to proceed pro se, and you have the right to do so.
- Filing a pro se divorce keeps costs down. Divorces are expensive, especially when you're using an attorney. If you can't afford an attorney, you'll have no choice but to file as a pro se litigant. Pro se divorces cost a lot less than having an attorney, because you're only paying for filing fees, court costs, service of process, and printing and copying divorce papers. Divorces with attorneys can range from a few thousand dollars to many thousands of dollars.
- You and your spouse can work together. If you and your spouse can agree amicably, you won't necessarily need an attorney if you have little to no property, no children, and no major debts. Proceeding pro se allows you and your spouse to work out the terms of your divorce without escalating the tensions between you, which can happen when the gloves are off.
- Having a contested divorce is problematic. An uncontested divorce is one in which all major issues, such as spousal support, division of assets and debts, child support, child custody, and visitation are settled between you and your spouse. If there are outstanding issues, you have a contested divorce, which could go to trial. The procedure for questioning witnesses and using evidence is difficult if you're pro se.
- You'll need to do a lot of research. If you're planning to act as your own attorney, you'll have to research service of process, evidence, how much spousal support judges award in your state, how long spousal support lasts, and a host of other issues.
- You could lose money. If you're acting pro se and you don't have any legal training, you won't know when you're getting a bad deal. Pro se litigants lose thousands of dollars because they don't know they're entitled to pensions, some lottery winnings, or the marital house.
- The judge will not help you. If you're not sure how to fill out or file the papers, serve the other party, or agree on terms that are fair to you, the judge isn't going to help you. While a judge will ask if you've agreed to the settlement, the judge won't necessarily tell you when you're getting a bad deal. Likewise, the judge won't help you with rules of procedure and evidence if you go to trial.
- Judges are unhappy presiding over pro se divorces. While you're entitled to represent yourself, judges have short fuses when they have pro se litigants in their cases because going pro se slows down the case.
- Attorneys may take advantage of pro se litigants. Many attorneys will take advantage of you as a pro se litigant, and you could lose money without even knowing it.
If you're representing yourself, you might consider using divorce mediation instead of using the courts for your divorce. Depending on your state, mediation could prohibit attorney participation, so that's the best time to act as your own attorney. You must know, however, if your spouse will act in good faith or just go through the motions of negotiating. If your spouse won't act in good faith, you won't resolve your divorce, and mediation will be a waste of time.
The good news is that mediation is less costly and takes less time than a court divorce. Mediation is often less stressful than going to court, so it's a good alternative to going before a judge. Mediation is best achieved when there aren't a lot of assets or debts and when the parties can cooperate.
No matter how you do your divorce, it's important to know that you have choices. You can use mediation, use an attorney, or act as a pro se litigant. If you do file pro se, consider consulting an attorney to review your papers so you'll know that you're getting a fair deal.
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