Divorce and Self-Representation: A Fool’s Errand
A “fool’s errand” is an undertaking that is likely to be unsuccessful, useless or futile.
When considering commencing a divorce action, the thought of the potential legal fees involved sends chills up the spine of most individuals. Most often, these individuals realize the import of the issues involved and the expertise necessary to obtain the results they wish to attain. Other individuals, bloated with the legal knowledge gleaned from the inordinate legal dramas on television and movies, mistakenly confuse these shows with legal realities, and proceed to represent themselves in their divorce action. If you are considering representing yourself in a divorce, there are three important words you should know: DON’T DO IT!
Judges and attorneys cringe when they hear someone is proceeding pro se. If your case is before a judge, he/she will undoubtedly urge you to retain counsel, and caution that if you fail to do so, you will be held to the same knowledge and requirements as opposing counsel. This statement in and of itself should cause a reasonable person to re-think his/her course of action. Furthermore, this individual must also realize that to proceed without legal knowledge will only serve to cause exasperation to the Court, and try its patience throughout the litigation. The reasons to avoid self-representation have nothing to do with a lack of intelligence or other such deficit. Quite simply, the most obvious reason to avoid self-representation is a lack of legal knowledge. While anyone can Google a particular body of law, there are inordinate nuances and discretionary factors to be applied that you cannot maneuver merely by engaging in extensive internet searches. Furthermore, no matter how many of your friends and relatives have been divorced, they will not be able to advise you sufficiently regarding your particular action. There are numerous other considerations which may very well result in a negative outcome and unanticipated legal expense if you insist on self-representation: • In addition to the requirement that you know the specific area of law you are attempting to practice, there are numerous procedural rules to be followed. Failure to adhere to such rules can be fatal to your case in connection with tasks, including but not limited to: the filing of required documents, the drafting of applications for relief, the presentation of evidence, and the timely adherence to specific deadlines. • In the event that your lack of legal and/or procedural knowledge results in frivolous maneuvers and/or delays in the litigation, you may be subject to an order directing that you pay the legal fees of your spouse. This can occur whether you are the monied or non-monied spouse.
• While your spouse’s attorney has an obligation to be professional and civil to you during the litigation, he/she is not there to teach you the law. Likewise, the court is not permitted to give you legal advice. You will be truly on your own regarding the complicated issues and legalities in your divorce action.
The most dangerous aspect of self-representation is that often times, either during the litigation or after it has been concluded, a pro se litigant discovers that he/she should have done something differently in connection with a significant issue. Often times, this compels the pro se litigant to “bite the bullet” and retain legal counsel to “fix” his/her mistake. Unfortunately, even the best attorney cannot always undo or fix certain mistakes made by the pro se litigant. Furthermore, even if it can be done, it is often at great legal expense.
Especially in cases where there are child custody and/or significant financial issues at stake, self-representation is the epitome of being “penny wise and pound foolish.” If you really feel compelled to represent yourself in a divorce action, the best advice may be to delay the commencement of your action, go to law school, and file for divorce after your admission to the Bar.