by Attorney Eric D. PuryearPeople will sometimes attempt to represent themselves in a divorce case. When a person acts as their own lawyer (pro se) in a divorce, there are often serious problems created, both in the short term and the long term. Anyone who is considering representing themselves should consider the possible ramifications before proceeding.
In the US legal system – which includes Iowa and Illinois, of course – people are generally free to act as their own attorney. When they choose to do so, the courts will hold them to essentially the same standards that an attorney is held to. Since the role of the judge is not to help or hinder either side in a case, a person who represents themselves is truly going at it alone. While the possible things that can go wrong in a case when a person who is not a lawyer has to try and handle legal matters, some of the more common pitfalls are discussed below.
Improperly preparing legal documents – Legal documents often have to be properly prepared for them to be legally effective. In other words, a document that doesn’t say the right things just won’t work. For example, in a divorce case in either Illinois or Iowa, there are certain “magic words” that must be used in the Petition to properly establish a basis for a divorce. A Petition that lacks such language cannot be the basis for the court to grant a divorce. Since it is not the job of the clerk or judge to inspect documents to see that they are legally proper when filed, situations can arise where a person’s divorce is derailed and must be started over due to such an error.
Not properly serving legal documents – Service of process is an important thing in the legal system, and many people who are not attorneys neglect to properly serve divorce documents. Such a failure can result in a divorce waiting period not starting, the inability to seek temporary child support for months, etc. In cases where parental kidnapping is a concern, failing to serve documents can also render injunctions ineffective.
Failing to properly proceed with the case – Divorce cases involve gathering information through the Discovery process. That information relates to every aspect of the case, including child custody, child support, property, alimony, etc. When Discovery is not done properly, it can be difficult or even impossible to obtain a favorable outcome at trial. Failing to prepare a case properly can also prevent the case from settling without a trial, as it is the ability to know the details of the case and persuasively present a settlement proposal that leads to cases being resolved by agreement. People who do not negotiate from a position of strength and knowledge rarely persuade the other side to accept their proposals.
Missing out on temporary aspects of the case – In a divorce case, there is often an ability to seek temporary custody, child support, visitation, and/or alimony. Not handling such temporary matters properly can result in a person losing out of important time with their child or money that would have made life easier. Indeed, I can think of many situations where a person’s attempt to represent themselves cost that person thousands of dollars in lost child support or alimony that could have easily been obtained had they retained counsel from the beginning of the case.
An inability to recognize legal issues – For a person who has never handled a divorce case, there will be things that they have simply never considered, and areas of law where they do not understand the rules. It is an understanding of the legal rules that allows an attorney to present the facts of the case in the manner that is most favorable to the client and most likely to achieve the desired outcome. Cases where a person attempts to represent themselves in a divorce often result in that person failing to present legally relevant facts, failing to make the right legal arguments, and spending court time on matters that don’t help their case. When the other side properly handles their presentation of the case, the result is rarely favorable to the spouse who has tried to be their own lawyer.
Being “too close” to the situation to make good decisions – Even amicable divorces can be emotional experiences. That emotion tends to cloud even the most rational person’s judgment. When a person has an attorney, part of that attorney’s role is to help the person recognize the impact that emotion has upon their decisions, and the attorney can use their years of experience to see and understand what the client is going through. When a person attempts to represent themselves, there is no such objective help available. Indeed, this issue is so important that attorneys who are getting divorced will generally get another attorney to represent them, even if they handle divorce cases for clients on a daily basis.
Closing thoughts on attempts at self representation
I often have potential clients come in to consult with me with about a divorce case that is already pending when they realize that they are not able to properly handle the case themselves. In such a situation, the first thing that we have to do after being retained is go over the documents and actions taken by the client, and figure out what was done correctly and incorrectly. In every single such case for clients who attempted to represent themselves in a divorce case in Iowa or Illinois, there was something that had to be fixed. Often, the fix could be made and the only result of the client having acted as their own attorney was wasted time and money from having to go back and fix something that the client had done improperly.
However, there are also situations where it is was not possible to fix the harm that the client had caused by representing themselves. Sometimes that is because the client waited too long to seek an attorney, and there is just not time anymore to properly handle the case. As an example, Discovery takes about a month in Iowa and Illinois divorce cases (and sometimes even longer). That means that a client who waits until 25 days before trial to retain an attorney will be deprived of the ability to have Discovery in their divorce case unless the court grants a continuance of the trial. Continuances are not guaranteed, and if the court declines to grant one then a person can be at a severe disadvantage.
A divorce case is often the most important legal situation in a person’s life. The outcome of the case can have a profound impact upon a person’s children, living situation, finances, and every other facet of their life. As such, it is rarely prudent for a person to try and save money by being their own lawyer, as doing so tends to cause problems that end up costing a person more money and more grief.