Divorce Without An Attorney: Court Rules And PaperWork

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By Cathy Meyer, Founding Editor - March 28, 2017

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If you plan to divorce without an attorney or Pro Se, you will have to be organized, know your state laws, get acquainted with your court clerk, and know your state’s rules of behavior for attorneys and judges.

Divorce is an emotional and legal event. If you have an attorney representing you, you are free to focus on the emotional aspect of your divorce. If you are representing yourself, it’s up to you to deal with both the emotional and legal aspects. To be successful as a Pro Se litigant you need to put your emotions on the back burner.

The best way to stay focused and protect your legal rights if you are divorcing without an attorney is organization and preparation.

Organization:

Knowledge will be your best friend; organization will be your second-best friend. The Pro Se litigant will accumulate a mountain of paperwork through legal research and court filings. Being organized will help you stay focused and will save time and energy.

  • Purchase file folders and a filing cabinet to be used before, during, and after the divorce process.
  • When doing research on state divorce laws and civil procedure, print out what you find and file it away in its own folder. It is reference material and you want it handy.
  • Have a separate file for every document you file with the courts. In that file keep the original and a copy that is stamped by the court clerk with the court stamp and dates the document was filed.
  • Keep a written log of everyone you speak with, the date you speak with them and the issue discussed. It will be a quick reference that will keep you from having to spend valuable time looking back through files.

Preparation:

Lawyers go to law school for a reason. They don’t want to show up in court and not know what to do. You won’t have three years of law school to help you prepare but you can learn what you will need to know. Thanks to Google, your telephone, and the knowledge of what to ask and look for you can gain enough expertise to take your case before a judge.

Get to know your local court clerk and what you can expect from him or her during the divorce process. Below is a list of ways your court clerk may be able to assist you.

1.Give you information about court dockets or calendars and discuss what is in your court file.
2.Discuss court rules, court procedures, and administrative practices.
3. Identify and provide court forms you will need during the divorce process.
4. Answer questions about how to complete court forms, but not give advice on how the pro se litigant should respond to questions on forms.
5. Define common legal terms used by the court.

You should also...

  • Learn your state’s divorce laws. You want to know child support guidelines if you have children. Become familiar with how your state determines child custody, visitation, and property distribution.

 

  • Research your state’s Rules of Civil Procedure or Civil Code. Your state’s civil procedure rules are a mission statement. They are rules that the courts must follow to protect the legal rights of anyone involved in a civil action. During a divorce, you are seeking a legal or equitable remedy to the end of your marriage. Your state’s Rules of Civil Procedure or Civil Code protects you during a civil action. If you don’t know those rules you won’t know if someone has stepped on your legal rights.

 

  • Lawyers have a Code of Ethics or Code of Professional Responsibility. Find your state’s Bar Association website and learn how attorneys should conduct themselves ethically and what their professional responsibility is. The opposing attorney has codes of ethics and a code of professional responsibility that he or she has to follow in a relationship the client and with you. As with the rules of civil procedure, you need to know this information to be able to protect your legal rights.

 

  • Every state has Canons of Judicial Ethics. These are the rules, principles, or standards a judge is expected to follow during any legal process. In other words, just as the opposing counsel has ethics to follow so does the judge who is handling your case. The judge’s conduct is governed by rules set by the state. It is up to you to learn what is and what isn’t acceptable conduct from a judge.

 

How to petition for a divorce without an attorney

You begin the divorce process as a Pro Se litigant you will file an original petition for divorce with the local court clerk. The original petition for divorce is a document requesting that the court grant a divorce.

Filling out the petition for divorce

If you are asking for the divorce (or “filing” for it) you are known as the “petitioner,” and your husband is known as the “respondent,” or “defendant.” When you petition the court for a divorce, you state the cause of your divorce. If you are filing for specific grounds make sure you don’t go into details.

Example: If your spouse has cheated on you, you should say, “Petitioner seeks divorce on the grounds of adultery” rather than, “Petitioner seeks divorce because my husband has been sleeping with another woman for six months.”

The court isn’t interested in whether or not you hate your husband, feel he should be stricken from the face of the earth, or any other emotions you may have. Keep your feelings to yourself.

I promise you, the judge who has to read your petition will appreciate it.

Information needed in the petition will vary, but most states require

  • Identification of the spouses by name and legal address. 
  • Date and place of marriage. 
  • Identification of children from the marriage, their names, and ages.
  • Proof that the petitioner and her husband have lived in the state or county for a certain length of time and have the right to file for divorce. 
  • Grounds for divorce. 
  • A statement on how the petitioner would like to settle finances, property division, child custody, child support, visitation, and other issues related to divorce.

Filing your petition for divorce

The petition for divorce, along with two copies and the filing fee (the Clerk of Court will tell you what it is), are hand-delivered or sent by certified mail to the local court clerk.

If you can’t afford to pay the filing fees (in the district of Los Angeles it is $299.50; a fee of around $250 is typical), request an Affidavit of Inability to Pay Court Costs when you file your original petition. The judge will review the affidavit and decide whether to waive the filing fees.

Remember to ask for a copy of the affidavit of Inability to Pay Court Costs for your own files.

The clerk will date stamp, file the original petition, and give it a case number. The other copies will be date stamped also, with one copy returned to you and the other copy is for the Respondent (your husband).

Notifying the respondent

State laws vary but normally you have between 20 and 40 days to notify the respondent. After you have filed the original petition for divorce, you serve the respondent with a copy of the petition. You can obtain information from the Clerk of Court about the district’s rules about notification.

Some courts will have the local sheriff notify the respondent; some may require you to do this on you own. (Which doesn’t mean you yourself have to do it; you can hire someone to serve the petition.) And be very aware of possible violence, if the Respondent is prone to violence. Have the papers served in a public place… have someone with you… make sure you are safe in your home … file a restraining order if necessary.

Be sure to inquire at the time of filing how the respondent will be notified and if you are responsible in any way for notification of the respondent.

After notification

Once the respondent is notified he will file an answer to your petition for divorce with the court clerk. Again, the time he has to do this varies from state to state.

After he responds, one of two things will happen:

  • The court, on its own motion, will set a date for a hearing so that temporary orders may be handed down.
  • Or you will need to file a motion asking the court for a hearing date so that temporary orders can be handed down.

When filing your original petition for divorce ask your court clerk if the court automatically sets a date for the hearing, or if you need to take any steps to make sure this is done.

*Every jurisdiction has their own rules and procedures when it comes to filing for a divorce. I encourage you to speak with your local court clerk about what is expected of you AND if there are any online resources available for Pro Se litigants in your jurisdiction.

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