Podcast

January 24, 2020 Podcast

Season 3 Episode 1: Can I Represent Myself in my Divorce Case?

Season 3 Episode 1: Can I Represent Myself in my Divorce Case?

 
 
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People going through a separation often want to know whether they can represent themselves in connection with their divorce case. While the short answer to this question is yes, in this episode host Jaime Davis and fellow family law attorney Lynn McNally delve deeper into the issue and discuss times when it may be ok for you to represent yourself and other times when you should consider hiring a lawyer to help you.

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Note: Our Podcast, “A Year and a Day: Divorce Without Destruction”, was created to be heard, but we provide text transcripts to make this information accessible to everyone. All transcripts on our website are created using a combination of speech recognition software and human transcribers and could contain errors.

Jaime Davis: Welcome to Episode 1 of Season 3 of ‘A Year and a Day’. I’m your host, Jaime Davis, and this episode I will be discussing the pros and cons of representing yourself in your divorce case with family law attorney Lynn McNally. Lynn is a board certified family law specialist and partner with the Smith Debnam Law Firm in Raleigh. You may recall that Lynn joined us on the podcast in Season 1, and we are glad to have Lynn back with us today. Welcome, Lynn.

Lynn McNally: Thank you. Jaime, I’m glad to be here.

Jaime Davis: So today I want to talk about representing yourself in court. I often receive calls and questions from folks who want to know if they can represent themselves in connection with their divorce case. And while the short answer to this question is yes. Today, we’re going to delve a little deeper into the issue and discuss times when it may be OK for you to represent yourself and other times when you should probably consider hiring a lawyer to help you win in your experience. When is a person most likely to consider representing himself in connection with his family law case?

Lynn McNally: Well, really, the only reason to consider that is for issues related to money. Lawyers are expensive, divorces are expensive, and sometimes people just don’t have the resources to hire an attorney. If you have the resources, it’s not a smart idea to represent yourself.

Jaime Davis: That’s a really good point, because by hiring a lawyer, you can shift some of the burden to the lawyer. You know, some of the time burden, the emotional burden. And that lawyer can handle those things for you. You’re not going to be in a position of having to keep up with your court deadlines as much as you otherwise would if you were representing yourself. And so I agree. If cost is not an issue and you do have the resources, it’s probably preferable to hire a lawyer if you are considering representing yourself. You should be aware of the term pro say, because you’re going to hear that term a lot. Say is a Latin term and it means in one’s own behalf. So a person who is representing themselves is referred to as a pro say party. Lynn, in your experience, what are the risks of representing yourself PRSA?

Lynn McNally: Well, the first and biggest risk is that the likelihood as a person who is not a lawyer is that you don’t know the law.

Jaime Davis: Right.

Lynn McNally: You don’t know your rights. You don’t know your obligations. You may not even be sure of the issues that you have to contend with. And when people don’t have that information and they try and resolve things on their own, whether that’s by some agreement with their spouse, without lawyers involved or through some court action, they may give up significant rights. I’ve fixed a lot of problems that have arisen in people’s cases when they did represent themselves previously.

Maybe they entered into a separation agreement without knowing what it really meant. And I have spent money, their money to fix some of those problems. The other issues is that if you find yourself in court, particularly in Wake County, Maine, where in Wake County, North Carolina, and we’re what’s called a family court jurisdiction. So there are rules that are local and specific to Wake County that you may not know. If you’re not a lawyer, but even if you don’t represent yourself, the judges must treat you as if you know those rules and they will hold you to the same standard as they hold a lawyer that’s representing a party.

Jaime Davis: Right. And there can be serious repercussions if you don’t follow those rules. For example, in Wake County, we are required to do what’s called initial disclosures, an equitable distribution and support cases. And if you don’t comply with those rules and deadlines and produce the documents and things that you’re supposed to produce, the other side may ask that you be prohibited from presenting evidence about your claim or your defense, or they may go a step further and ask the judge to actually dismiss your claim for a failure to follow the rules. And so there can be serious consequences if you, number one, don’t even know what the rule is. And number two, if you don’t follow that rule.

Lynn McNally: Right. Well, and aside from just the rules that might be local to Wake County or other jurisdictions, there are rules of evidence. When you’re in court and you’re presenting a case. It’s not as simple as handing up a piece of paper to the judge and saying, judge, here’s my bank statement. You have to walk through certain requirements and foundations in order for a judge to look at stuff like that. And people who are not trained to do that may not be able to even present to the judge the things that they need to prove their case or to defend against another party’s claim against them.

Jaime Davis: Yeah, I think a really good example of that is in a custody case. A lot of times parents want to talk about in court things the children have said and they want to base their claim for custody on the fact that their child has said, I want to live with you, mom, or I want to live with you, dad. And more often than not, most of the time, I would say those statements are not going to become evidence in your custody case. And if you are not aware of that on the front end and you go into your court hearing thinking that you have a slam dunk of a case because your child has told you that he or she wants to live with you, you may be in for a big surprise when the judge tells you that she or he is not even going to listen to that evidence.

Lynn McNally: That’s right. I’ve been sitting in court watching trials between two parties who are unrepresented, where one party thinks that they can hand up a letter from. Their cousin or their neighbor stuff, somebody who should be a witness in the case but needs to be there in person to testify. There is a common misconception that you can hand up affidavits or letters and that the judge will accept those things to help you prove your case.

Jaime Davis: In what types of cases are folks more likely to be able to represent themselves?

Lynn McNally: Well, the first one that comes to mind is the absolute divorce, which is simply the lawsuit that’s required to dissolve the marriage. It doesn’t deal with property. It doesn’t deal with custody. It doesn’t deal with support. It’s just the I say the word simple.

Nothing is ever simple, but the simple dissolution of the marriage in Wake County. You can actually find and I believe there is a small purchase price for a do it yourself divorce kit.

Jaime Davis: Right.

Lynn McNally: And there are plenty of people who if that’s the only issue they have, they will purchase that divorce kit and look at the forms and read the instructions and see if they can get that divorce done on their own. Usually it’s not that big of a deal. Sometimes problems arise. I’ve had a lot of clients who attempted that process on their own, but it became overwhelming or they didn’t understand and ended up coming to back coming back to me to consult with me on what they needed to do or ask me questions regarding why their divorce wasn’t granted when they thought it would be.

Jaime Davis: Right. Because again, there are rules of civil procedure that even as a pro se party, you have to follow. You have to make sure that you serve the other party with the lawsuit in the correct manner. You also have to make sure that your proof of serving that lawsuit is actually in your court file so that the judge who is presiding over the divorce hearing knows that you actually served the other side in Wake County. There actually is a special time for process divorces, and the judges will hear all of the cases that folks have filed themselves asking for a divorce. My one word of caution is that once that divorce goes through, it can get rid of some pretty significant rights in your family law case. Once the divorce is final, you lose your right to ask for certain things like equitable distribution and alimony.

And so before you attempt your absolute divorce on your own, I would advise a person to at least have a consultation with a family law attorney so that they can understand what rights they have, what rights they might be giving up, and whether there is something else they might need to do before they file that divorce complaint.

Lynn McNally: That’s right. And that’s the advice I give most anybody who’s contemplating representing themselves to file for the divorce or to do something else. It isn’t a good investment of money to go and sit down with a good lawyer for an hour and a half or two hours or however long it takes to describe your situation and get some general information about your rights and obligations when you’re untangling your marriage. And that’s one of the most important things you’re going to do. You have to do it with care and it needs to be done correctly and it’s going to impact your life for the foreseeable future and maybe your children’s lives forever. So you just need to be mindful of it.

A lot of lawyers are happy to meet with people in a consulting posture. So folks can come and talk with me, for example, and ask me questions. But they don’t have to pay me money to be their lawyer in the future. And maybe they go and try and do some things on their own and then come back to me and punch in about where they are in their case and what else they need to be doing. And that way you can really control your cost. You’re really just paying for the time that you are sitting down with that lawyer whenever you need it to ask questions and make sure you’re on the right track.

Jaime Davis: Right. The lawyer can serve to give you the roadmap that you need and to make sure that you were thinking about. All of the different facets of your family law case to make sure that you’re not missing anything. Lawyers can also help you draft documents.

They can help you draft a document and they don’t necessarily have to be your lawyer. Going forward, they don’t have to sign that document for you. And that’s another way that you can work with a lawyer, yet represent yourself and try to keep your cost down.

Lynn McNally: That’s right. And you know, your question, Jaime, was what kinds of cases are easier than others to represent yourself? You know, the absolute divorce is one example. But cases that are not. Incredibly complicated. From a financial standpoint, those might be easier for people to represent themselves. Cases where you are settling or or negotiating outside of court versus having to try a case would be easier kinds of cases. You still have some risks, but those are easier than complicated financial cases to to represent yourself.

It’s also when a person is asking me whether they should represent themselves, I ask whether the other person is represented. And if the other person is represented, you really are kind of behind the eight ball if you are not.

But if both parties are unrepresented, at the very least, it’s sort of an equal. You’re on equal footing with each other. And so those are other kinds of cases that it might be easier for people to be pro say, rather than how a lawyer.

Jaime Davis: Well, let’s talk about something you mentioned. You mentioned that cases where folks are attempting to settle the issues might be better cases for folks to represent themselves. Along those lines made me think of mediation. What happens if folks are representing themself themselves during mediation?

Lynn McNally: So if there are two people representing themselves that engage in a mediation to settle their domestic issues and what I’m talking about is the technical classification is family financial mediation. Right. So with a mediator who’s certified to deal with the financial issues that arise out of a separation, and that person can also deal with other issues, like non-financial issues, like custody. But if a mediator helps to pro, say, individuals resolve their case to resolution or to its final resolution, then that mediator is prohibited from putting together the document that those folks have to sign. And so at least one of those parties is required to hire an attorney to put that settlement in writing. Now, it’s for a finite period of time. There’s no. Probably no renegotiation of things is just a matter of having a scrivener put the deal in its proper form, but the mediator cannot do it for those two prosaic people.

Jaime Davis: So in those situations, the parties are leaving the mediation. Best case scenario, if they reach a deal with basically just a summary of the terms of the deal. That’s right. And it’s still not a binding contract, though. Another place that lawyers can be helpful is to perhaps represent you during your mediation. That way, if you are able to get your case resolved at the mediation, your lawyer can draft up the agreement for you.

Lynn McNally: That’s right. Well, let me clarify something I said there. There no requirement after you’ve reached an agreement at mediation that you hire a lawyer to put the deal in writing. Nobody ever has to hire lawyers. But then you or your pros say spouse is tasked with putting that in writing yourself. And the likelihood that you can do that in its proper form so that it’s binding and it covers all the things that needs to cover. Unless you have training to do that, it’s pretty slim. It is going to be one of the most important documents you ever sign. And so it’s worth at least the investment of time to hire somebody who is trained in this area as the scrivener so that it gets done correctly.

Jaime Davis: I agree. Some of the most difficult cases that I’ve had to deal with have involve separation agreements that were most likely pulled off the Internet by one party or the other and they attempted to make it fit their situation. And when it came down to trying to enforce that agreement, it was next to impossible because it didn’t make sense. It was ambiguous. The court couldn’t tell what the folks were trying to agree to. And at the end of the day, you know, that agreement was basically worthless to those folks because it couldn’t be enforced.

Lynn McNally: You know, that’s right. And another big issue, and I use this example a lot when people are talking to me about whether they need a lawyer to draft an agreement or whether they can do it on their own. Is that. One word can change the entire meaning of the agreement and the word that I typically use in it as an example is incorporation.

So, people probably don’t know what that means, means unless they are an attorney who practices family law or an attorney that practices contract law. But if your if you put in the context of your contract that it should be incorporated into a judgment, then you may be changing or allowing your contract to be changed into a completely different format, which is a court order, and that that has a huge effect potentially on the things in the document that you’ve agreed to. It could even allow some of those things to be modified without your permission.

Jaime Davis: And that essentially changes your whole deal.

Lynn McNally: That’s right.

Jaime Davis: Do you have any tips for someone who wants to represent themselves?

Well, sure. We’ve talked about one of them already, and that is at least invest the time and money in a consultation, have a consultation with a good attorney who you can sit down with and walk through all the issues so that you know what you have to deal with. That’s probably the most important thing. And then use a lawyer in a consulting kind of capacity. Like we mentioned before, you maybe have a consultation. You start to do some of the things on your own and then you go back and touch base with that lawyer. One easy way to do that is if you were outside of court and you’re trying to negotiate some sort of an agreement, you go to a lawyer, you have a consultation. It’s a finite amount of time and money. That lawyer tells you the things that you need to consider and maybe gives you advice about how your agreement should end up. And then you leave and you go and you deal with your spouse directly and perhaps you reach some consensus with your spouse on what the agreement is. And maybe you go back to that lawyer and say, hey, here’s our deal. Put it in writing in its proper form. So there’s a really easy ways to get to to get some understanding about what you even need to talk to your spouse about.

Jaime Davis: So what you just said made me think of something that I think is pretty important. The one time that you should definitely not represent yourself, in my opinion, is if you are involved in a high conflict case and if you are not even able to communicate at all with your spouse or child’s other parent, you would be well-served to hire a lawyer to assist you because that lawyer could handle those communications for you. It is going to be difficult, if not impossible, to resolve a case with someone that you cannot even have a conversation with.

Lynn McNally: Well, that’s right. And probably 70 or more percent of the time, a lack of communication is what causes the breakdown of the marriage.

Jaime Davis: Right.

Lynn McNally: And so even if it’s not high conflict, folks who are separating typically are not communicating well together. I mean, it could be that they’re saying the exact same thing different ways, and it’s preventing you from getting to resolution, which you could otherwise get to pretty easily. The other problem in representing yourself in that situation is that it’s your life, it’s your emotions, it’s your children, it’s your money is your future. And and it’s hard to be objective. It’s hard to make good business decisions and pick your battles wisely when you are in the middle of this very emotional thing.

Jaime Davis: Because what’s the old saying? The lawyer who represents himself has a fool for a client. It’s for that very reason that when you are dealing with your own finances and your own children, you know, even as a lawyer, it would be wise to go have a consultation with another attorney who can help you see a more objective perspective.

Lynn McNally: That’s right. That’s right. Without that level of objectivity, it really can just prolong the pain of the process.

Jaime Davis: I think another tip for folks who want to represent themselves, they should really learn about Family Court and understand how Family Court works. If it is a family court jurisdiction. Visit the Family Court website, see what forms and instructions they might have online. I think all of those things can be really helpful to a person who wants to represent herself.

Lynn McNally: Yeah, absolutely. And those things are all at least in Wake County, pretty readily accessible. I would imagine in other counties and and other states there’s the same ability to get copies of any local rules that are specific to your venue or jurisdiction and to look at forms that are required.

It takes it takes a lot of work. I mean, you might save money if you represent yourself, but you will not save time. It’s a pretty big investment of time to learn all of those things, to make sure you’re not making a misstep.

Jaime Davis: And along those lines, once you find the forms and you know what you need to fill out, make sure that anything you submit to the court is complete. Make sure that you file it on time. Make sure you know when it’s due and you get it to the court by that time. Make sure you provide all of the required information. You know, if there are checkboxes. Make sure you check all of the boxes that apply to your case.

Lynn McNally: Yeah. And if there’s a hearing, you got to be there.

Jaime Davis: Right.

Lynn McNally: Even the process of scheduling a hearing can be a little bit complicated. And if you don’t follow the rules of simply asking the court to set a court date for you, you may not get that court date.

Jaime Davis: Well, and even if you do ask the court to set a court date and you get it, you got to let the other side know. So if you don’t do that and you show up for your court date, the judge is gonna tell you most likely that you’re not gonna have a hearing that day because you didn’t get proper notice to the other party.

Lynn McNally: That’s right. I’ve seen that happen in court a lot. There are plenty of people who represent themselves and they get the court expecting to have a hearing and they have all of their witnesses there. And the other party has not been served with notice of hearing. And when that’s not done, the court doesn’t have a choice. There is no discretion. Your case cannot get heard. And so you and all your witnesses go home and you try to get another day.

Jaime Davis: Yeah. A court hearing is not an appointment and you can’t simply reschedule it if it’s inconvenient for you. It is a requirement that you attend.

Lynn McNally: That’s right. That that would make a judge mad.

Jaime Davis: Agreed. Something else to think about. Make sure you understand how to prepare for an act in court. I think this is crucial. Courtroom etiquette is important. It is important that you are respectful and that you know how to address the court. It is important that you wear the right clothing to court. You don’t show up in court, in your shorts or your ripped jeans. You need to show respect to the court.

Lynn McNally: Yeah, that’s it. Aside from just being respectful in the way that you dress, how you dress for court sends a message as to how important all of this is to you. And you don’t have to be fancy and you don’t have to be expensive. You just have to. I tell my clients, dress like you’re going to church.

Jaime Davis: Right. Exactly. Exactly.

Lynn McNally: The other thing to know about how to act in court is that when a judge is sitting in court, he’s looking at you. He or she is looking at you. And every time you roll your eyes, because you can’t believe the lie that somebody has told on the stand or every time you shake your head. It’s seen by the judge and it’s impactful to the judge.

The other thing that just made me think about is just that we talked about the difficulty of of getting your evidence in.

Many times when process people are in court, they don’t know how to ask questions of the witnesses to get information in. When you call your own witness to the stand, you have to ask them open ended questions. You can’t lead them. You can’t testify for them.

And sometimes I’ve heard or seen people just shut down and have been kind of paralyzed. They can’t even figure out how to ask a question in such a way that the court will allow it kind of veered off track there. But that’s an important thing when you think about presenting your evidence in a courtroom. I’ve seen plenty of people try and testify themselves to tell their story in the courtroom while they’re questioning a witness. And a judge is going to disallow that. And sometimes those people get combative. And that is something that you can’t do. You must be respectful. You must not talk over the judge. You must not talk over the witness or an opposing party or counsel. You just have to be very careful with all those things that can affect your case.

Jaime Davis: Right. And likewise, you know, if you are a party to a lawsuit and you want to be able to tell your story and you want to testify, that can be more difficult if you don’t have a lawyer there to ask you the questions and sort of keep you on track with what the important facts are and what the judge needs to hear. It can be hard to be on the witness stand testifying and just sort of talking about what you think the judge should hear. You may forget important details. You’re going to be nervous up there. You know, it’s not comfortable to testify in court. And sometimes having a lawyer there to keep you on track and ask you those questions that are going to prompt you to testify to these things can be a really good thing for you.

Lynn McNally: That’s right. And there are some people that think, whether they’re represented or not, that they ought to take a piece of paper or 10 and read to the court what they want the court to hear.

Sometimes that may be disallowed. Sometimes you have to hand over those papers to the opposing counsel or or the opposing party if they request it. But it also feels a bit contrived. It seems more credible when you can be asked a question and you’re just answering a question. You’re answering it honestly, you’re answering it truthfully, but you’re just answering the question that’s asked as to put as opposed to reading something that you have prepared. Who knows when and spent how, however long on it. I’ve also found that if you’re reading things, then you’re not engaging. So if the judge pauses and asks you a question, it could foul up the rest of what you think you have to say. Or maybe the judge doesn’t think that what you’re talking about is necessarily relevant.

It’s just much more difficult for you to sit on the stand and tell a story without somebody being able to lead you through the the landmarks of that story about questions.

Jaime Davis: Other than the forms that we’ve talked about, what other resources are out there for people who want to represent themselves?

Lynn McNally: Well, we’ve talked about local rules and local forms. Those are certainly not the only rules that are applicable to these cases. We mentioned the rules of evidence before. There are also rules of civil procedure. So there are lots of legal statutes that if you want to represent yourself, you should familiarize yourself with. And that’s not an easy task. There are also in many places some self-help kinds of resources.

So we mentioned one already and that’s the the absolute divorce packet that you can go online and download and use to help lead you through the process of absolute divorce. There are probably plenty of law schools that have legal clinics and you should do some research and find out whether there is a local law school who might have a clinic available to help you either fill out forms or talk you through the process or just show you where the additional resources are. And then, of course, being able to just have a consultation like we talked about with a lawyer can get you moving in the right direction. Most of the time.

Jaime Davis: I think Legal Aid of North Carolina might also have some self-help clinics and might be able to offer some services in certain cases, depending upon whether you meet their income requirements.

Lynn McNally: That’s right. And I think in addition to income requirements, I think there are also kinds of law that they may not address. Right. But it can’t hurt to call and it can’t hurt to give them your information and see if you qualify for their assistance.

Jaime Davis: Do you think there are any resources that a person shouldn’t use if they want to represent themselves?

Lynn McNally: Yes. They should not use their neighbors separation agreement or custody order as a go by to draft their own document. The issues might not even be the same. Certainly their circumstances cannot possibly be the same because no two marriages are alike. And I would also caution people about finding resources online. I mean, there are a million things out there, a million separation agreements. If you just Google it, you can find forms everywhere. But be mindful that every state is different with respect to what it requires. So whether you’re looking at a North Carolina specific form or not, who knows? And again, though, the context of your document can turn on just one word.

So I wouldn’t use those resources without at least running it by a lawyer, whether it’s you’ve put it together and you sit down in that consultation and you and your lawyer look at that document. But pulling those things off line use in forms that your neighbor or friend or whomever has used those can be really problematic. And I would tell people not to do that.

Jaime Davis: Right at the end of the day, remember that you want it to be done correctly, not necessarily quickly. And those two things always go together. And sometimes you really do get what you pay for. And if you find a free form, it may end up costing you a lot of money in the end to fix that. If it comes down to it.

Lynn McNally: That’s right.

Jaime Davis: Lynn, thank you for joining me today. If any of our listeners would like to contact you, what is the best way for them to reach you?

Lynn McNally: Well, the easiest way is probably by email. And that address is lmcnally@smithdebnamlaw.com.

Jaime Davis: I hope you all enjoy this episode of A Year and a Day. If you have any questions or comments, I would love to hear from you. You can e-mail me at jdavis@divorceistough.com. If you like what you heard today, please leave us a review on Apple podcasts. As a reminder, while in my role as a lawyer, my job is to give folks legal advice. The purpose of this podcast is not to do that. This podcast is for general informational purposes only. This should not be used as legal advice and is specific to the law in North Carolina. If you have questions before you take any action, you should consult with a lawyer who is licensed in your state.

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gailor hunt attorney
'A Year and a Day: Divorce Without Destruction' is a law podcast produced by Gailor Hunt Davis Taylor & Gibbs, PLLC partner Jaime Davis. You can learn more about Jaime's experience and expertise on her bio page. If you have a question about the podcast, you can email Jaime at jdavis@divorceistough.com. Please note, the purpose of this podcast is not to give legal advice. This podcast is for general, informational purposes only and should not be used as legal advice. The information discussed in this podcast is specific to the laws in North Carolina. Before you take any legal action you should consult with a lawyer who is licensed in your state.
lynn mcnally podcast guest
The guest on this episode of our podcast is Lynn McNally, a family law attorney and partner at the law firm of Smith Debnam Narron Drake Saintsing & Myers, LLP, in Raleigh, North Carolina. You can learn more about Lynn's experience and expertise on her bio page. If you have a question about anything discussed in the podcast, you can email Lynn at lmcnally@smithdebnamlaw.com.

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