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3 Tips for Representing Yourself in a Family Law Case:

  • By:Ron Payne

While most people would prefer to have an attorney represent them in court, it isn’t always an option. Especially if you or your spouse/opposing party/etc. are accusing the other of deceit, hiding things, etc., or involves complex things such as ownership of a small business, a retainer for an attorney can be anywhere from $5,000 to $10,000+, and let’s face it – most people simply don’t have that kind of money to spare (or, spending it would wipe them out entirely).

Even law firms such as ours that offer smaller retainers (our retainer is usually in the $3,000-$5,000 for litigation), if you don’t have it (or maybe you already spent it on another attorney/previous case, etc. then you just don’t have it. So what is one to do? While it is no substitute for hiring an attorney (or at least consulting with one), here are 3 tips for you that will help you prepare to represent yourself.

 

Document, Document, Document!

  • Save all text messages, emails, etc. You should save everything. One, you never know what small piece of evidence might be important later, and two, you don’t want to be accused (or guilty of) destroying key evidence.
  • Keep a journal of all important events: Key arguments; custody exchanges; telephone/text messages, any physical abuse, etc. Testimony later can be a LOT more reliable if you actually documented it at or close to the time it happened. A journal can also be used as evidence to the judge to corroborate your story (“see, as I explained what happened, I then wrote it down so I wouldn’t forget details, and here’s my original, unedited writing here!”)
  • Gather important statements, bills, , especially if you want reimbursement or are asking the court for money. You may want to see copies of bank statements, investments, health care expenses, utility bills, etc. If your spouse kept them from you, then you’ll want to ask.
  • Ask the other side for their documents. Sometimes, with a lawyer, you can do so informally, but if they won’t cooperate, then use a “Request for Production”. (Not a subpoena). A “Request for Production” allows you to ask the other party or parties for all relevant documents in advance and have copies of them delivered to you. A subpoena allows you to ask third parties to send documents, as well as require a witnesses to attend court. Be sure to note the deadlines for requesting these items before a hearing, but in general, you want to send Requests for Production at LEAST 45 days before a hearing (they get 30 days to respond) and Subpoena’s at least 10 days before a hearing. Note that if you are subpoenaing documents from a third party, and not just require them to attend the hearing, you may want to give them 45 days also. (For example, one time I had a case where it took AT&T over 9 months to comply, so the documents arrived 6 months after the trial ended. Not helpful at all!)
  • Prepare a financial affidavit and have the last 3 months of wage statements. In most family law cases (Equitable Distribution or ED, Child Support, Post Spousal Support or PSS, Alimony), how much money you make can determine (or at least sway) a judge on your argument. Having up to date, accurate financial information ready to provide the other side when required to do so will both demonstrate your knowledge of your case, cooperation, and preparation for court. Also understand that you WILL have to provide that to the other side – just because you think that “the other lawyer is really shady” or “I don’t want my ex to know how much I make now” will not excuse you from complying. Back in ye old days (and commonly on movies, sit-coms, etc.), you would see an attorney surprise the other side with evidence. That’s not real life. Judges do NOT like surprises – the rules of evidence provide for a means for all important data to be exchanged in advance of trial, which promotes settlement and prompt resolution, and if you refuse to provide data, you’ll be on the bad side of the judge quickly! While judges are more understanding about ED affidavits and inventory, or lengthy requests for large amounts of data, your personal expenses and income are easily available for you to produce. Another “pro tip” for you – if you have a variable/seasonal job, where you make a lot in some months and then far less in others, have 12 months of income documentation and be prepared to argue for a 12 month average instead of just using the last 3 months, if it is in your best interest do so.

Review the local rules available at NCCourts.org for the county your court case is in and find out how calendaring works.

One of the biggest reasons I find that clients are confused by the system is the maze of rules you have to navigate that have NOTHING to do with your hearing. For example, to file an absolute divorce, you need to have a cover sheet, summons, complaint, then you need to have service performed (and how/by whom?), and then provide the court with proof of service. Then you need calendar requests, motions, and proposed orders. HELP!!!! Those rules are how the court does business, so if you don’t follow them, at best you will fall through the cracks and at worst your case could be dismissed.

Further complicating matters is that almost every county has a completely different way of doing things. Our firm handles matters in nearly every county from Alamance to Watauga, and Forsyth/Winston-Salem is a far different matter from Guilford/Greensboro, which is a far different way than Ashe. Keeping up with those rules (and then the local “unspoken” or unwritten rules). If you look online, you’ll see that some counties have no rules. Other counties have books of rules (Mecklenburg…) Your mileage may vary. So take the time to read the rules and see if anything applies to your specific case. Make notes on deadlines for filing, exchange of documents, income information or affidavits, and calendar requests.

Now, as I noted, some counties have NO rules. What then? Make a list of questions and go visit the clerk of court, preferable NOT during a busy time (first thing in the morning and around lunch are bad. Mid-afternoons are best, probably). They will tell you they can’t give you legal advice – which is true, so make sure you are clear in asking procedural advice – how do I calendar this hearing, what documents am I missing to file this correctly, how does the Sheriff get the documents to serve them, what money will I owe, what forms of payment, etc.).

Lastly, do not be frustrated if the clerk can’t give you a lot of help. They are forbidden by law from giving legal advice (they are usually not attorneys, and the few clerks who have law degrees work for the STATE, not you, so they can’t give it to you anyways – they can’t favor one side or the other, and helping you might appear that way). Some clerks are very comfortable and will give you a TON of advice (after they disclaim they are forbidden from it), others will not give you any. Take what you can get and do your best with it!

 

Prepare!

  1. For hearings on motions (i.e. motion to dismiss, etc.), usually the only argument is legal, but you want to look at exactly what the other attorney states in his motion. If they argue for example that you haven’t provided documents, be prepared to explain to the judge why you need more time or are unable to do so. Note: “Because I don’t think they should get them” is ALWAYS a losing argument. If it is a motion to modify custody, support, etc., then plan as set forth below in trial, but have both legal argument (from their motion) AND fact-based arguments for your hearing.
  2. For trials:
    • Know what you are going to argue – what is the main point/why do you deserve the outcome you are desiring to obtain, and make an outline of your case. You will have limited time to present, so you need to prioritize your argument in order from STRONGEST TO WEAKEST. In writing you are often taught to put your strongest argument in your closing – in court, it is the opposite. So argue your “home run” first!
    • Present your witnesses in an order that works with your outline. That’s easy. However, if you are calling witnesses from work – particularly teachers or police officers, let them go “out of order” and work with their schedule – the Court (and your witness) will appreciate it! Good favor can’t hurt. Bad favor with the Court or a witness CAN and often will hurt!
  3. Prepare a question list for each witness to make sure you don’t forget anything, and arrange the questions in an order that makes sense to you. Do NOT jump all over the place. A good way to approach it is sequentially – i.e. in the order things happened. If you are confused about what you are asking, the Judge will be too. Remember – you know your case better than the Judge will, so explain it to them clearly and carefully!
  4. If you can, do a little bit of research on basic objections (i.e., hearsay is the most common) and know a) what you can/can’t do and b) what the other side can or cannot do. For example, “So-and-so said that________” is hearsay, and unless they are going to actually testify in court, it is not admissible. There are hearsay exceptions, but that is more complex and beyond the range of this article.

 

Lastly, once you’ve done all of the above, I STRONGLY advise that you get a consultation with an attorney. Our firm will gladly give you a consult to go over your case prep, help prepare documents (that you can file pro se), give advice on local process and procedures, etc., on an as-needed, hourly basis. You can pay AS YOU GO, meaning if you need a 2 hour meeting to review your complaint for custody or to help draft it, you can pay just for the 2 hours. The retainers are for general representation, where we are appearing in court AS your lawyer and on your behalf. If you are going to represent yourself, then you can just “get tips and advice” from us, and only have to pay for that.

If you do talk with another lawyer and pay them a fee to assist with your case, be clear about what THEY are doing – is it document prep, just review and advise, etc, and what YOU are responsible for. Own your case, keep up with the deadlines and documents, and be prepared, and you will find that the Judges will give you time of day. MOST pro-se litigants are both confused and unprepared, and a Judge cannot help you in court – they can’t explain it to you, so they will definitely appreciate a well prepared pro-se party in court, because that would be the exception!

 

If you’d like to schedule a consultation with our firm to see how we can help you represent yourself by preparing documents for you, advising you on court process, procedures, and such, contact our office today!  Contact Apple Payne Law, PLLC to learn more!

Posted in: Education, Family, General, Pro Se