Pro Se Litigation – Leveling the Playing Field

Whether you are pro se or are able to hire a lawyer, the degree to which you are able to achieve success in your divorce case depends entirely on your plan. Decide early on what issues are important to you, and figure out what you need to give up or show in order to have those issues decided in your favor. Be realistic in setting your expectations, but also be clear and concise about what you want. Lawyers often gain a reputation of being able to “game the system” because they know various tricks that non-lawyers don’t know, but often it comes down to having a clearer picture of what is important to his/her client and being able to effectively argue for those things. If you take the time to plan as thoroughly as you can, and you conduct yourself in a calm and respectful manner and keep a positive attitude, you will probably surprise yourself at how effective you really can be.

Pro Se Litigation – Coaching from Lawyers

If you don’t feel like you can afford a lawyer, you’re almost certainly not alone. But you should consider setting some money aside to get some coaching from a lawyer. An initial consultation can be very worthwhile, just to help you start planning your divorce. You should also consider buying an hour-long “coaching session” before you go to court for a hearing, so s/he can walk you through how to present your position most effectively to the judge who will be presiding over the hearing. And if your case does have to go to trial, lawyers can be good at teaching basic trial skills so you won’t be caught completely flat-footed in the courtroom.

Note there are often resources like these available at low or no cost. Law libraries often have “self help” centers that are staffed by lawyers. Local bar associations also sometimes have legal clinics “staffed” by volunteer lawyers. And there are legal aid options available in some cases, especially in major urban environments.

Pro Se Litigation – Using the Internet

This week we’re talking about resources available to you if you have to represent yourself in your divorce case. You’d be amazed what you can learn from doing internet searches. Google whatever question you might have about how to handle some aspect of your case, and you’ll probably be pointed in the right direction. The internet is also very useful in finding sample forms and letters for you to use for particular purposes, from pleadings and motions, to discovery requests, and even settlement demands.

One word of caution when relying on the internet for forms and such is to make sure whatever you’re doing is appropriate in your particular jurisdiction. I would recommend you start with some sort of primer or other overview of the law applicable in your specific state. Nolo.com and Findlaw.com are good examples of resources for this kind of general information.

Pro Se Litigation – Libraries

This week we’re talking about pro se litigation – i.e., representing yourself. Yesterday I suggested you can minimize disadvantages you may have by not having a lawyer if you believe in yourself. Today we’re going to talk a little more about what resources you do have.

Probably the first thing you should do is learn your way around the law library in your county or district. It is usually located at the courthouse. If you happen to live near a law school, the school will often have its own law library, though the courthouse library will generally have information more specific to your jurisdiction. Don’t underestimate your regular public library, either. And of course, no matter which kind of library you use, don’t be afraid to ask for help from the librarian to find what you need – that’s what s/he is there for.

Pro Se Litigation – Attitude is Important

What if you can’t afford an attorney and have to represent yourself (“pro se”)? Are you completely out of luck?

Odds are, you’re not alone. A quick Google search for “statistics pro se divorces” shows staggering rates of pro se representation in divorce and other family law cases, often more than 50% in many jurisdictions. The good news is, given the age we live in, there are many more resources available to pro se litigants than there used to be.

Cliched though it may sound, the one indispensable thing you have to have is a positive attitude. If you believe you can effectively present your case, you can learn to do so. Keep in mind, in all likelihood your case will end in a settlement, either at the mediation table or otherwise – not at trial. If your spouse has a lawyer and you do not, in the courtroom you are at a disadvantage, but outside the courtroom you are on more level footing with your spouse than you think.

Property Division in Lieu of Alimony

[Ed: Originally published on Facebook.]

Yesterday we talked about the interplay of alimony and property division. Often it can make sense to pay more alimony in exchange for a more favorable property division. Note the reverse can be true, in a sense – the court can adjust its property division to make up for the fact it may not be able to award alimony.

Alimony is typically not available to a spouse who is guilty of a fault issue – for example, adultery. In other words, if a spouse has an extramarital affair, and that is the cause of the divorce, then that spouse cannot be awarded alimony in most cases.

Notwithstanding what the parties could get at trial, keep in mind that divorcing spouses could almost always agree to do whatever they want. So even where a spouse cannot get alimony at trial, the other spouse may be better off agreeing to pay alimony anyway. Every case is different, but the moral of the story is this – when considering property issues, don’t forget about alimony as an option, and think about making alimony and property division work together to achieve a good outcome for both parties.

Alimony in Lieu of Property Division

[Ed: Originally published on Facebook.]

Alimony and property division often intersect. One is an award from the CURRENT estate, and the other is an award from the FUTURE estate. Sometimes, the current estate is relatively modest, but one spouse has a substantial amount of “separate” property, not subject to being divided or awarded to the other spouse. Alimony can help offset that to some degree.

In fact, alimony should often be part of any final settlement negotiations. Even if the other spouse “doesn’t deserve” (or even can’t legally get – more on that tomorrow) alimony, the high-income earner may want to seriously consider paying alimony anyway in exchange for a more favorable property division. There are several reasons for this, but often-overlooked is the fact that paying alimony can provide a significant tax savings, as it is a “page 1” deduction, meaning the alimony paid is deducted dollar-for-dollar from the payor’s adjusted gross income.

To take a simple example, suppose the couple only has the husband’s 401(k) to split, and there is $90,000 in it at the time of the divorce. Typically the 401(k) would be split so that the wife would receive $45,000 in 401(k) money, but in many cases, the wife would rather have – or may actually need – the cash. If she cashed in that 401(k), after taxes and penalties she might have $25,000-$30,000. But, if the husband was to agree to pay $2,000/month for 2 years in exchange for being able to keep his 401(k) intact, that might provide some much-needed cash flow for the wife, which she may value more.

Why Do We Have Alimony?

[Ed: Originally published on Facebook.]

We’re looking at alimony this week. Historically, alimony was awarded as a recognition that the traditional role of the husband was to be the “breadwinner” outside the home, while the traditional role of the wife was to care for the home and/or the children. Women in general did not have the employment opportunities they have today, and divorced women had an even harder time. Alimony allowed the courts to achieve some measure of fairness by making the husband provide support for his former wife.

In many ways, this view of alimony can seem out-of-place in our modern world. Women have employment opportunities they did not have before, and sometimes the wife actually out-earns the husband. But remember yesterday we talked about alimony being an allowance out of one spouse’s future estate. In many cases, where one spouse has significantly higher earning potential, that has usually been made possible at least in part because the other spouse contributed so much to the marriage. In this way, it can be helpful to see alimony as recoupment of an “investment” in the earning capacity of the other spouse.

What is “Alimony”?

[Ed: Originally published on Facebook.]

This week we’re going to explore the concept of “alimony”. We start with a basic definition – alimony is support (almost always money) paid by one spouse to the other. If you see references to “spousal support”, that’s alimony. You may occasionally see older references to “alimony for the support of minor children”, but generally that term has fallen into disuse in favor of the simpler, more modern phrase, “child support”.

A more analytical definition of alimony is that it is the allowance out of the FUTURE estate of one spouse, for the support of the other spouse. This is an important concept because it is contrasted with property division, which is an allowance out of the CURRENT (marital) estate. (For more information about property division, check out our posts from a few weeks ago.) Tomorrow, we’ll take a closer look at the interplay between alimony and property division.

Other Forms of Alternative Dispute Resolution

[Ed: Originally published on Facebook.]

Mediation is the most common, but certainly not the only, form of “alternative dispute resolution”. Let’s take a brief look at a couple of others.

“Arbitration” is similar to an actual trial. The arbitrator(s) (there can be more than one) will make a decision, just like a judge will. The parties present evidence, just like in a trial, although typically the rules of evidence are far more relaxed in arbitration. There is a huge potential pitfall, however, in that there is generally no effective avenue of appeal if you don’t like the result. Usually arbitration is a bad idea in divorce cases, although a limited arbitration to divide personal property might be a good, cost-effective way of getting that issue resolved if the parties just can’t seem to agree among themselves.

“Judicially-hosted settlement conferences” are very similar to mediation. Typically the parties are not required to settle, just like in mediation. The parties also generally spend most of the time in caucus, also like in mediation. Instead of a mediator, though, the neutral is typically a senior judge or a retired judge – someone who can bring years of experience on the bench, deciding cases just like yours, to the table. This can be an invaluable experience, as you will hear, directly from someone who thinks and acts a lot like the judge in your case, what that judge would do in your case. Actual results in the case could vary, of course, but knowing what one judge would do can have a profound impact on one side’s willingness to consider alternatives that don’t cede control of the case over to another judge.

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