After years of practicing family law, I have rarely seen a family law case where people representing themselves did not end up in future lawsuits. The problem is that those future lawsuits can be costly and cost more than if the person had hired an attorney to begin with.
When a family law case is filed, the law requires that the opposing party be served with the lawsuit. This can be accomplished in several ways. Once a person is served with the lawsuit, they have a limited number of days to “answer” the case or the other person can obtain a final order without that person’s knowledge. This is called a default judgment. A default judgment can also occur if a person files an answer to the suit, but then fails to show up at the final trial. Either of these circumstances can be devastating, causing the person who does not agree with the order to live with the order or file a lawsuit to ask the court to set aside the order. Lawsuits to set aside final orders can be expensive and such suits are extremely technical and require certain evidence to succeed.
Lack of attorney representation does not justify or result in special help from the courts. A person representing themselves is referred to as a “pro se” party and they must follow the same laws and technical rules as attorneys. In family law cases, there are no rule exceptions for persons who represent themselves. When people represent themselves and they are not educated to know the law or the ropes of the court system, such usually results in a final order that they dislike.
Divorce cases are a common area where we see final orders that people dislike. A final order in a divorce case is called a “decree of divorce” and should contain a division of the spouse’s community property. Texas is a community property state and all property that is considered community property is divided by the court. Once a decree of divorce is agreed upon or the court makes an order with both spouses participating, the property division is final. One of the problematic areas is the division of private, federal or state retirement, or employee benefits such as; pensions, 401k’s, stock options etc. The valuation and division of these benefits is extremely complex.
There are other important documents that accompany finalizing a divorce besides the decree itself. We call these closing documents, and without these documents the spouse receiving property may have a hard time actually obtaining the property. For example, if real estate is being awarded to a spouse, then deeds will need to be signed so the land is actually transferred. If retirement is being transferred, there are documents that must be provided to the retirement plan in order to actually transfer the retirement to the non-employee spouse. If such documents are not signed at the time of the divorce and the other spouse will not sign the documents after the divorce, then the spouse receiving the property may have to return to court to obtain the other party’s signature on the required documents. Most pro se litigants are not aware of the closing documents required to actually accomplish transferring property and/or retirement.
Many family law orders contain provisions regarding children. These orders consist of certain rights to the children, child support, medical support, and possession of the children. Most orders with regard to a child can be modified up until the child is 18, graduates from high school or is emancipated, depending on the type of family law case. However, to modify an order, certain conditions must be met. The rights to children must be set out in clear detail or disagreements may ensue. This is true whether the case is a divorce case, grandparent case, aunt and uncle case etc. The most important and fought over right is the right to decide a child’s “primary residence” also known as custody. All orders containing the right to decide a child’s primary residence should state within what area the child’s residence must be established. If not, the person deciding the primary residence may establish the child’s residence anywhere they choose which could be devastating for the child’s family. In addition, the possession schedule with regard to the children should be specific or problems will arise.
Likewise, child support is often addressed in orders regarding children. It can be quite disappointing for the person receiving child support to find out the order is not enforceable. A child support order that is not correctly written to provide for enforcement by “contempt”, which means the paying parent can go to jail for nonpayment, is not much of an order. The law is very clear that an order must be specific in certain respects for the order to be enforceable by contempt. If a parent wants to collect child support through the paying parent’s employer, the court must sign a wage withholding order, which must also be presented to the court.
Most family law cases require a “prove-up” where the court must hear certain evidence in order to sign the family law order. I have rarely seen a prove-up done correctly by a person without attorney representation. Further, if the prove-up is not done correctly, the judge cannot sign the family law order. The goal for a “do it yourself” family law case is to save money and stay out of court, however doing it yourself may cost you more money in the long run and you could end up in court. I think Mark Twain said it best: “Good decisions come from experience. Experience comes from making bad decisions.”
-Charla H. Bradshaw