Filing For Divorce Without a Lawyer

Many people go to family court without a lawyer.

A person who moves through his or her court case without an attorney is called a pro se filer. He or she is a self-represented litigant (SRL)

The number of self-represented litigants (“SRLs”) is often the highest in family cases—divorce or separation and custody issues – where the parties can negotiate the terms and conditions of the breakup without acrimony.

Pro se divorce filing works best ending marriages on an uncontested or amicable basis. If one spouse decides to hire a lawyer, the other spouse should also hire a lawyer.

In some jurisdictions, such as California, a couple can end a marriage in a summary divorce. One spouse does the filing and the other simply goes along. Other jurisdictions make it is easy to get a simplified divorce, where one party simply fails to appear and the action defaults in favor of the petitioner. Many couples use online filing, which vastly simplifies the process with step-by-step instructions.

According to a 2006 report, in the United States, many state court systems and the federal courts have experienced an increasing proportion of pro se litigants. Estimates of the pro se rate of family law overall averaged 67 percent in California, 73 percent in Florida’s large counties, and 70 percent in some Wisconsin counties. In San Diego, for example, the number of divorce filings involving at least one pro se litigant increased from 46 percent in 1992 to 77 percent in 2000, in Florida from 66 percent in 1999 to 73 percent in 2001. California reports in 2001 that over 50 percent of family matters filings in custody and visitation are by pro se litigants. In the U.S. Federal Court system for the year 2013 pro se litigants filed approximately 27 percent of civil actions filed, 92 percent of prisoner petitions and 11 percent of non-prisoner petitions. Defendants in political trials tend to participate in the proceedings more than defendants in non-political cases, as they may have greater ability to depart from courtroom norms to speak to political and moral issues.

Two out of three family court filings in California are submitted by SRLs according to the Council of California. Seventy percent of family cases in Maryland involve at least one SRL at some point in the case, according to the   Maryland Access to Justice Commission. The percentage of SRL divorce filings is believed to be near 40 percent in Texas, according to the Texas Access to Justice Commission.

All too often, SRLs have been left out of conversation on improving the legal process, where judges, attorneys, and court staff have informed these efforts. Where to begin, how to proceed, and making sense of the outcome – all can be puzzling for the pro se filer.

IAALS, the Institute for the Advancement of the American Legal System at the University of Denver, has announced a first-of-its-kind national project to examine the growing trend of American families who represent themselves in family court.

The IAALS study, Cases Without Counsel: Experiences of Self-Representation in U.S. Family Court, is asking self-represented litigants in family court about their experience with the legal process. The goal is to contribute to the conversation on how family court processes can adequately and appropriately meet the needs of all litigants. This study builds on qualitative empirical research undertaken in Canada.

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Co-Parenting: Making Joint Custody Work

Co-parenting amicably gives children stability and close relationships with both parents – but it’s rarely easy. Despite the many challenges, though, it is possible to develop a working relationship with a former spouse for the sake of the children.

Joint custody – where both parents enjoy both physical and legal custody — can be exhausting and infuriating, especially after an acrimonious split that so often poisons the well of memories.

Former spouses can start by thinking of the relationship with each other as a completely new one—one that is entirely about the well-being of the children, not about either of them. Their marriage failed, but their family did not; doing what is best for the children is the most important priority. The first step to being a mature and responsible co-parent is to always put the children’s needs ahead of his or her own. In this routine, any anger, resentment, or hurt must be subdued. It’s okay to be hurt and angry, but feelings cannot dictate behavior.

Parenting is full of decisions — decisions former spouses make, whether they like each other or not. Cooperating and communicating without blow-ups or bickering makes decision-making far easier on everybody. Aiming for consistency, geniality, and teamwork with a former spouse means the mundane details of child-rearing decisions tend to fall into place.

Children should be exposed to different perspectives and be flexible, but they also need to know they’re living under the same basic set of expectations at each home. Aiming for consistency between both homes avoids confusion. The rules don’t have to be exactly the same in two households, but if the former partners establish generally consistent guidelines, the children won’t have to bounce back and forth between two radically different disciplinary environments. Homework routines, curfews, and off-limit activities should be followed in both households.

Similar disciplinary protocols for broken rules, no matter where the infraction happened, reinforce consistency.

Schedule. Where you can, aim for some consistency in your children’s schedules. Making meals, homework, and bedtimes similar can go a long way toward your child’s adjustment to having two homes.

Through a parenting partnership, the children come to understand that they are more important than the conflict that ended the marriage—and understand that their parents’ love prevails despite changing circumstances. Kids whose divorced parents have a cooperative relationship feel secure, benefit from consistency, understand problem solving, and have a good example to follow. When confident of the love of both parents, kids adjust more quickly and easily to divorce and have better self-esteem. Similar rules, discipline, and rewards between households, so children know what to expect, and what’s expected of them. Children who see their parents continuing to work together are more likely to learn how to effectively and peacefully solve problems themselves. By cooperating with the other parent, a former spouse establishes a life pattern that children can carry into the future.

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Selling Your House During a Divorce

One of the many tough decisions that a divorcing couple face is what to do about the family house. Many, if not most, couples sell it and divide the profits, but the decision is difficult because the family house was the family home until the divorce.

When a divorcing couple reaches the part of their breakup where the family house is on the table, each should always say and think house, not home. The family house is often the largest single asset a couple shares and is almost always owned by each jointly as tenants by the entirety, which means that each has an undivided 100 percent interest in the property. The family house is so many boards, and nails, and pipes on a piece of land. The family home, however, is a state of mind and habit of the heart, and, in a divorce, is the locus of melancholic memories of happier times gone now forever.

Memories, good and bad, can make the sale of a house in a divorce much more difficult. However, selling the house can be the default when neither spouse wants it or neither can afford to buy out the other. Selling the house is not quite as simple as buying it. At some point, the couple agrees on an asking price and puts the property on the market and hopes to get the best price, but before that point, decisions must be made jointly by two people who are in the midst of one of life’s most stressful experiences.

Divorcing couples with children often negotiate a regime whereby the custodial parent stays in the house so that the children are less disrupted in school because uprooting children to a new school when the kids are already adjusting to a lot of change can make a bad situation worse.

Selling the house may be a good course for couples without children because it makes for a clean break and both spouses may get money to start again.

Selling a house as part of a divorce can take as long as a year, and the seller(s) may incur capital gains tax that might apply as well as other expenses. These expenses are one disadvantage of selling, especially if market conditions aren’t good for seller.

Once the divorcing parties decide to sell, however, they are faced with a lengthy and detailed process that involves a number of projects, such as arranging for an appraisal, completion of lengthy disclosure paperwork and in some cases selecting an agent. These steps take hard work in the best of times, and the emotional upheaval that comes with divorce does not make them any easier.

Most couples want to use an agent to negotiate the sale because trying to sell a house without one – particularly when the couple are ending a marriage – makes for added stress. The agent arranges the showings of the house and can take care of the details that come up from the time the for-sale sign goes in the front lawn until the moment the couple turn over the symbolic front door keys to the new owner.

Normally, the agent brings his or her expertise into the process by recommending an asking price. Accepting the agent’s advice about the asking price is one of reasons for using an agent, and turning that decision over to the agent eliminates one potential conflict.

The agent often makes recommendations about preparing the house to show, which can be the most difficult part of the sale. Preparing to show the house means getting it ready. Often some work that needs to be done—for example, painting — must be done before the house can be shown. The couple must agree where the money to do this comes from. If both spouses have moved out by the time the house is on the market, the agent stages an open house. If one still resides there, he or she needs to get things cleaned up, remove the clutter, and probably remove some of the furniture. When preparation falls on one spouse, the couples sometime negotiate compensation.

The couple must come together again when it comes time to assess offers from potential buyers. Once again, the agent can offer advice, but the divorcing partners must make the decision.

Finally, as part of the settlement, the spouses negotiate the division of the proceeds. An escrow company or a lawyer can distribute the money, after paying off all the obligations on the house and making other negotiated payments. Before the sales proceeds are divided and distributed, the couple must pay off the mortgage, any equity line or second mortgage, and the brokers’ fees.

Even though both spouses own the house, adjustments must be made when one spouse pays the mortgage from the date of separation to the date of sale. The distribution should be adjusted to account for the paying spouse’s contribution. If the husband makes these mortgage payments, he reduces the principle and increases the couple’s equity, which increases the amount to be divided between the spouses after the closing costs and obligations have been paid. He can justifiably argue that he should recover increases in equity that earned as the result of the payments during the separation.

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Co-owning the House After A Divorce

Joint ownership often appeals to couples that want to keep their children in the family house until they finish school. In this arrangement, when the divorce happens, the couple become tenants in common, which means they each own half the house instead of tenants by the entirety, which they were when married. Tenants by the entirety, which is reserved for married people, means both have an undivided 100 percent interest in the house. Normally, the couple works out arrangements whereby one party, the one who stays in the house, pays the mortgage, while all other costs are split evenly between the two of them. When the children finish school, normally the parties sell the house and split the proceeds.

It’s not unusual for spouses to continue owning the family home together after a divorce, especially where kids are involved. For example, if one wants to buy the other out but cannot afford to do it all at once, he or she might agree that payments can be made over time while both spouses keep an interest in the house. Co-ownership also appeals in a weak real estate market when the market might improve later. Couples sometimes delay the sale until a specified event, perhaps the youngest child’s graduation from high school. This is what is called a “deferred sale.”

Former spouses jointly owning the family house after a divorce offers them advantages and disadvantages.

Advantages of Co-ownership

When the custodial parent cannot afford to buy the other one out, then the obvious advantage is that the children remain in the house anyway, giving them security and continuity at a time when they most need it. Co-ownership makes a buyout possible by spreading payments over time.

Disadvantages of Co-ownership

The disadvantages should be considered, however. Because both former spouses are responsible for paying the entire mortgage, a credit report for either shows the entire amount of the mortgage. Carrying a large debt when not living in the house anymore can make it difficult to get credit for other purposes. A late mortgage payment by the occupying spouse hurts the credit rating of the other.

Co-ownership involves real estate accounting. The former spouses must decide how to share the mortgage and upkeep expenses and which one takes the mortgage interest deduction. For example, even if each pays equal amounts on the monthly mortgage, each can agree that one spouse takes the entire mortgage interest deduction in exchange for increased support or some other equalizing payment.

Co-ownership adds another dimension to a continuing relationship with a former husband or wife. Of course, as parents, the former spouses are still in contact, so managing the former family house may not seem an undue burden. However, a successful divorce means emotional disentanglement, so if letting go is a problem, a spouse may be wise to consider another routine and think twice before agreeing to the long-term commitment of joint house ownership.

The spouse not living in the house might have a change of heart later and want (or need) to sell sooner than anticipated. A settlement agreement should specify when the house can be sold, but anyone who’s really determined to get out of an agreement can by forcing a court fight over that issue.

Couples who own the house for more than six years after a divorce becomes final are at risk of losing the tax benefit of IRS §1041, which provides that transfers between spouses as a result of a divorce are not taxable as long as the transfer takes place within a year of the divorce becoming final, or as long as it’s “related to the ending of your marriage,” which means it’s made under a written agreement or order and occurs within six years of the date your divorce becomes final.

Divorcing spouses should consider what happens if one of them dies because each has the right to bequeath his or her half at death. Couples can agree to leave each other their respective shares of the house for the duration of the occupancy, so that the resident spouse can continue to stay as planned.

A bankruptcy by either spouse puts the house at risk for both because in either of these cases, the bankrupt spouse’s share can be seized, possibly even resulting in a forced sale. There’s really no way to protect against this, so if you believe it’s a meaningful risk, don’t go the co-ownership route.


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Divorce – When Do You Know Your Marriage is Over?

How does a person know when he or she reaches the point of no return, when it’s “just no good anymore,” as the song goes, when putting a marriage back on the tracks is simply too much of a stretch? In the end, of course, the answer is personal. Younger people with shorter marriages often reach this juncture early on. They marry young and discover early that the trip down the aisle was a mistake from the first step. Sometimes, the decision to divorce is mutual, and often they walk away from marriage and each other, particularly if they don’t have any children. They both just throw up their hands, shrug their shoulders, and say, “This marriage is a mistake.”

For marriages of a longer duration, however – for example, two or more years, when the couple have had children, acquired a house and amassed wealth – the decision to end becomes much more complicated and often emotional and financially painful.

Usually couples are in two totally different places when it comes to divorce. One is ready to leave; the other is still in love. Very often the announcement of a divorce blindsides one spouse who never sees it coming.

When the answers to the following questions are irrefutably yes, one of the spouses typically has his or her eye on the door:

> Does every situation, no matter how trivial, end in a fight?

> Do the spouses continually exhume hurtful episodes in the past?

> Is all the respect gone from the marriage?

> Does one spouse believe it is impossible to recapture respect?

> Have one or the other’s goals and dreams moved and migrated?

> Is one partner no longer fostering the other’s individual growth?

> Have one or the other changed so much that the other no longer shares moral, ethical, or lifestyle values?

> Have the spouses lost the art of compromise?

> When they disagree, are the partners unable to map a path together that is acceptable to both?

> Do the spouses have a basic sexual incompatibility?

> Have they become unattractive to each other?

> Have they stopped making love?

The answers, for many, might be straightforward: The emotional relationship with a spouse is largely negative, for one or more of the reasons listed previously.

The decision to divorce should never be made in the aftermath of a fight. No bridges should be burned in a moment of anger. Divorce is final and should be considered carefully, not just for its impact on spouses who want to end the marriage but also for its impact on the children. The ramifications of a divorce reverberate through the lives of everyone involved.

Unless there is violence or abuse, ending a marriage should be a course of last resort. A person who moves forward heedlessly might lose more than he or she needs to, or more than he or he can bear.

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Alcoholism and Divorce

Alcohol is the number one drug problem in the United States and a major factor in many divorces. At some point in their lives, more than one out of every eight adults in the United States faces alcohol abuse or alcoholism. Put another way, nearly 14 million people in the United States — or one of every 13 adults — are alcoholic in nature, and nearly half of all adults have a family history of alcoholism.

Alcoholism affects not only the health and well being of alcohol abusers, but also the lives of their significant others, families, children, and friends. Some couples persevere and overcome one spouse’s alcohol problem, but often alcoholism causes families to deteriorate and marriages to fail.

The alcoholic spouse casts a dark shadow on his or her family, and during a divorce or separation, alcoholism’s life changing consequences radiate from the alcoholic to his or her spouse, children, family and friends. When an alcoholic’s marriage ends in a divorce, family court can intervene to deal with the needs of families struggling with a spouse’s addiction.

The fact that someone has a drink every day does not mean he or she is an alcoholic. However, when alcohol dependence causes problems with human relationships, problem drinking as well as a disregard of the damage it does to the spouse and the family, the spouse’s alcoholism must be faced. A spouse’s alcoholism may not be an issue if minor children are not part of a divorce; however, it is a significant issue when minor children are involved.

Alcoholism is the elephant in the room. It is a beast, and spouses and children make excuses to keep it hidden. The power of the alcoholic’s denial may be so strong that it transfers to his or her family and important people in his or her life, convincing them that the alcoholic’s problem is something other than it is—weak health, bad luck, accident proneness, depression, a tendency to be preoccupied and worried, a mean temper and countless other possible problems.

Often the most difficult aspect of divorce for the spouse of an alcoholic is facing the beast that the spouse has hidden so well. Alcoholism has been called the disease of denial. So often the alcoholic drinks because they are unhappy, and they become unhappier because they drink, and thus a downward spiral ensues.

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Common Mistakes Men Make After Divorce

For many men life after divorce can be a long climb up a steep hill under the best of circumstances, but men can make it easier for themselves, their children, and, yes, even their former wives, by sidestepping some of the common mistakes. According to experts, common pitfalls men fall into when their marriages end make the reconstruction of their lives more difficult.

> Dating Too Soon Makes for Trouble. According to psychologist Dr. Sam J. Buser of Houston, coauthor of The Guys-Only Guide to Getting Over Divorce, too many men seek out a new relationship before the debris of their failed marriage has settled. Many men rebound into new relationships — and sometimes new marriages — within the first year. “That’s no doubt the biggest mistake,” says Dr. Buser. Men often jump into dating because they’re lonely, vulnerable, and sad, and they’re looking for someone to help them feel better, says Dr. Buser. Some men become sexual athletes.

“I advise my patients to wait at least two years. I’ve never had a man take me up on that advice, but I do try to slow them down.” He also advises men to date casually at first. “Tell the woman you’ve just been through a tough divorce and that you’re not ready for a committed relationship,” he suggests. “Acknowledge that it is not the right time for that.”

Rebound relationships “do not often work out in the long run.”

> Self Imposed Isolation. Some men retreat into a shell after a breakup, especially if the former wife gets custody of the kids. Retreat and withdrawal worsen feelings of depression, guilt, and loneliness, and they become an amalgam of hopelessness and despair — a potentially dangerous mix.

Divorced men are also more prone to alcohol problems, so be careful of starting down that road. “You don’t have to drink every day to have a problem,” Buser says. “Drinking a six pack is a binge.” And divorced men are twice as likely to commit suicide as married men.

Dr. Buser advises reaching out to old friends and trying to make new ones. “Expand your social and professional network to avoid isolation.”

The aftermath of a divorce is great time to go back to school. Going to school keeps a person active, stimulates his mind, potentially advances his career, and gets him out of the house.

> Introducing A New Partner to Children Too Soon. This common misstep can be very hard on children.

A divorced man who has met someone special feels very good; however, his children may not share his enthusiasm.

“The last thing the kids want to see is parents getting involved with someone else,” says Dr. Gordon E. Finley, a psychologist who specializes in issues facing divorced men and an emeritus professor of psychology at Florida International University in Miami. “They are going to be unhappy. Date when you feel ready, but leave the kids out of it.” Dr. Buser concurs. “Focus on the other adult when starting a relationship,” he says. “She can meet the kids when you know you are serious.”

> Giving In to Hostility. Hard as it may be, a man should try to make peace with a former wife, particularly when children are involved.

“You don’t want to be seen as an enemy or an antagonist but as a co-parent,” says Arizona State University professor emeritus of psychology Dr. Sanford L. Braver. “I’m not saying that that will be easy, but everybody will be better off.” Braver, co-author of Divorced Dads: Shattering the Myths, suggests that troubled men consider conflict and anger management classes. In his research, he’s found that when dads learn how to put compromises before conflict and competition, both the kids and the parents do better. “Learn to manage as well as you can from the middle ground,” says Braver. “Diplomacy and negotiating skills are key.”

Civility with a former wife encourages more flexibility in terms of custody and potentially more time with the children. “If divorced spouses have a working relationship, they can agree to informally bypass some stipulations,” Dr. Finley says. “Workloads go up and down, schedules can shift, and you want some way to take that into account.”

> Giving up on Parenting. Divorce ends the marriage, and a man is no longer a husband; however, he is still a father and always a parent.

A child still needs his father as a parent, not a visitor. “That should be the most important thing from the man’s point of view: His child wants him and his child needs him,” Dr. Finley says. “Maintaining the relationship is important for your child’s developmental outcome: social, emotional, and educational.”

> Being a “Disneyland Dad.” Dr. Finley warns against becoming what he calls a “Disneyland dad,” the guy who shows up and says, “Let’s have fun.”

“That’s not good for you or your kids,” Dr. Finley says. “Help them with their homework. Talk about what’s on their minds.”

Before divorce, some dads, Buser says, make the mistake of yielding much of their parenting role to their wives.

There’s a possible silver lining to divorce if they put in the work, however.  Lots of guys have never had experience as the primary caregiver, and they don’t know what to do and have trouble adapting,” Dr. Buser says. “But divorce gives them an opportunity, when they are with their kids, to be a full-time parent for the first time. They often become better fathers after divorce.”

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Divorce Without a Lawyer

Pro se (Latin meaning “for one’s own behalf”) means a spouse represents him or herself and appears in court in a divorce action without a lawyer.

In a divorce, 
 pro se lawyering works best in cases where the action is uncontested and without fault, in termination of a short-term marriage with no children, both spouses employed, easily distributed assets and debts. If the spouses control their own worst impulses, pro se lawyering can cut costs dramatically.

Pro se lawyering works only when the spouses are in agreement with one another about an uncontested divorce. When there are no issues for the court, their agreement reduces the action to a sequence of filings without any legal questions. Pro se lawyering does not work sell or inexpensively if one of the parties uses a lawyer. When a party appears as a pro se litigant, he or she must understand that the other spouse’s lawyer cannot and will not assist him or her. No lawyer can represent both spouses in a divorce.

Uncontested divorces make it is easy for a person to appear pro se, but even with this, the petitioner should review the paperwork with a lawyer.

Pro se lawyering works when both parties an keep the legal and emotional facets of a divorce separate. Dividing marital property, deciding child custody, negotiating alimony and determining child support can have long-lasting, negative consequences if not handled properly. It does not make sense to divorce inexpensively and then have to return to court later to renegotiate a livable child support agreement. A poorly planned divorce that ends in bankruptcy for one or both partners after it is final can more than offset the savings of a pro se divorce.

In some of the jurisdictions, the divorce paperwork for uncontested actions dovetails easily into pro se procedures. In some places, a court appearance is not required. California, for example, offers a summary, step-by-step divorce that reduces the action to an administrative procedure.

Sometimes people file pro se when the spouses cannot afford a lawyer or don’t want the added expense of an attorney or become dissatisfied with one they have retained.

A person deciding to divorce pro se should become familiar with his or her state’s divorce laws, the current version of the state’s rules of civil procedure, the state’s family court codes and any local county court rules. The best resource of needed information is the county court law library and local and state websites.

In most states, before filing, a party must a resident of the state for at least six months to a year. The county may also have rules regarding residency. The petitioner must file the petition in the county where either   spouse has lived long enough to establish residency. Once residency has been determined the petitioner may obtain the needed forms from your court clerk.

As in other actions, the spouse who files for the divorce is petitioner; the other spouse, the respondent. The petition is called the petition for divorce. The petitioner delivers the petition for divorce and two extra copies to your local court clerk. The clerk time dates them and files the original with the court. The two copies will be date stamped and one returned to petitioner. The other is used to notify the respondent that a petition has been filed. There will be a fee for filing the original petition. The fee varies from court to court. Payment is expected when the petition is filed, so the petitioner should know ahead of time what the fee is. An indigent petitioner who cannot afford the costs can file an affidavit asking the court to waive the fees. The affidavit can be picked up at the same time as the petition for divorce. The petitioner should have it completed and ready to file at the same time he or she files for divorce. If a judge approves it, the filing fee and other court costs are waived.

The party filing for divorce states a reason as part of the petition or letter. In most states, this will be irreconcilable differences or incompatibility based on new no-fault divorce laws. Knowing the state’s divorce laws helps familiarize the petitioner with the grounds for divorce.

The divorce process does not begin until the filing of the petition with the court clerk. Petitions can be obtained online. It is best to get all the proper paperwork from the court clerk so they will be specific to the laws and procedures of the court and the jurisdiction. The petition contains a statement in plain and to the point language regarding the cause of the divorce action and the relief sought – in this case a termination of marriage.

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