rprise that it usually takes much less time and effort to prepare for a proffer hearing than preparing for a full evidentiary hearing. In a proffer hearing the client won’t do much, if anything, during the actual hearing, with the exception of perhaps providing the occasional clarifying answer if the court asks them. No witnesses are called to testify in hearing conducted by proffer; instead, their testimony is provided by affidavit or verified declaration.
If you are unsure if your upcoming hearing will be a proffer or evidentiary hearing, ask your attorney. It could be catastrophic for your case if you show up at court believing the hearing is a proffer hearing when it’s a full-blown evidentiary hearing.
There isn’t one. There can’t be. I’ll explain why and what you can and should do if you want to go the DIY divorce by the book route.
The main reason there is no “best DIY divorce book in the U.S.” is because each state has different divorce laws. While all the states’ divorce laws share many, many similarities, it’s impossible for one book (that one could manageably read and understand) to speak authoritatively about specific divorce law for all states.
Consequently, most DIY divorce books deal in generalizations, so that they can appeal and apply to a national audience (can’t write a bestseller on “DIY Iowa Divorce”). This is not to say that generalized books on the subject of divorce aren’t worth reading, but they Clearly are not the best way too undertake a DIY divorce (not to put too fine a point on it, but anyone who would try to do his or her divorce by himself/herself by reading one of these generalized books on divorce would be a fool—there is a much better way to go the DIY route).
That stated, I know there are people out there who have written DIY guidebooks and forms set on divorce for specific states. It wouldn’t hurt to check your local library and bookstores to see if you’re one of the lucky states where someone bothered to write a do-it-yourself book specifically on the divorce laws and procedures for your particular state. Just make sure that such a book is up-to-date. Divorce laws and rules of procedure change frequently.
It would also be a good idea and worth the effort to see if local attorneys have written a book on DIY divorce for your particular state. These are often offered through the attorney’s website in various forms: e-books, slideshows, “online seminars”, forms set, a link to purchase a hard copy of a self-published paperback, etc.
Be warned about local attorney-authored DIY divorce books: many lawyers (most, in my opinion) who write so-called “do-it-yourself divorce” books/guides often do so to overwhelm you, intimidate you, psych you out, and persuade you not to do it yourself and instead hire an attorney (specifically the attorney who wrote the book). Make sure the DIY book you get is a truly completed and effective tool.
BONUS: Even if you believe you have mastered the art of DIY divorce in preparing your own divorce pleadings and other court documents, please Don’t be penny wise and pound foolish: pay a few hundred dollars to meet and talk with an experienced, skilled divorce attorney to review your documents and to ensure they are complete and compliant before you file them with the court. It is well worth the investment. That doesn’t mean you must hire a lawyer throughout the whole process, just pay a lawyer to review your documents to ensure they are up to snuff before you file them. I daresay it’s a crucial part of the DIY process. It could be the difference between success or failure (and in divorce, most of the time you only get one shot to succeed; failure can often be irremediable and permanent).
Utah Family Law, LC | divorceutah.com | 801-466-9277
Merely use them? I don’t see the harm in being familiar with them. Reading, watching, listening. Learning. That’s a good thing. A very good thing. Being dependent upon only free resources? No. That’s a bad thing.
Should you use free resources exclusively, without paying an attorney to represent you or at least consult with you (assuming you can afford an attorney’s help)? No. The family law legal system is a mess, and if success is your aim, then trying to navigate it and understand it and work within it on your own would be, with rare exception, foolish. I wish it weren’t true, but it is.
Ask sane people who thought they could represent themselves successfully in divorce and family law disputes how they fared. Precious few will tell you they have no regrets. Precious few will tell you they wouldn’t get an attorney’s help, if they had to do it all over again.
Utah Family Law, LC | divorceutah.com | 801-466-9277
I am still new at my job. I have only been a legal assistant since Summer of 2021, but I know for myself that I would never go to court representing myself. There is simply too much going on in the legal system to not have expert help.
Perhaps you think I am biased because my boss is a lawyer, but I have been to enough hearings and a few trials to know that “Pro Se” ain’t the way to go. Pro Se litigants are at a tremendous disadvantage simply because they do not know what they do not know. Many people elect to represent themselves due to financial constraints, while this is completely understandable, I feel for these people. They are at the mercy of a system that kills the weak (for lack of a more flattering term). The legal system seems more often to create victims rather than protect them. True justice is hard work, and if you are not trained, no matter how hard you work the load will likely be too much to bear by yourself.
Utah Family Law, LC | divorceutah.com | 801-466-9277
If I suspect my ex-husband fathered a child with someone else while we were married, can I challenge our divorce ruling?
If, by this question, you mean that
you are the wife; and
you discovered, after you divorced, that your husband had fathered a child during the marriage, but this fact was not known or adjudicated during the divorce proceedings,
it is unlikely that raising the discovery of the bastard/illegitimate (whatever term you want to use to describe the innocent) child would benefit you as the wife, if you tried to assert the discovery of this child as the basis for “challenging” or modifying the terms of the decree of divorce. Why? Because unless you could show that the discovery of this child has led to the discovery that the terms of your decree of divorce are unfair to you and would have been different had the court been aware of and taken the child’s existence into consideration when entering the orders that comprise your decree of divorce, discovery of the child may be irrelevant.
However, it may be worth your while to raise the discovery of this child with the divorce court, if for no other reason than to protect yourself from being deemed the child’s mother, given that the child was born, or at least conceived, during your marriage because it is possible for your husband to claim that the child is now your legal responsibility.
Utah Family Law, LC | divorceutah.com | 801-466-9277
In some respects, the ways are limited only by the power of one’s imagination, but the most common ways I have experienced in my field of practice (divorce and family law) are:
falsely and repeatedly claiming and/or contriving scheduling conflicts, thus causing deadlines and hearings and trial preparation activities to be delayed; and
teasing the opposing party with the prospect of or potential for settlement as a means of preventing or protracting/delaying discovery and/or delaying a trial.
Should I pay my lawyer to talk to the attorney of the other party? He spent 3 hours last week responding to 12 emails from the other lawyer and I need to pay him for this time. At this rate I my lawyer will become a secretary and I will be bankrupt.
This is a great question.
Clearly, if the opposing lawyer is trying to run up the costs of the litigation by calling or corresponding with your attorney excessively, so that your attorney has to take the calls and/or write responses to all of the correspondence, that opposing lawyer is playing dirty.
Still, some cases are expansive and/or complicated and may require a great deal of back and forth between attorneys as a reasonable and necessary part of the litigation process.
If your case is the kind that doesn’t require anything close to the amount of calls and emails the opposing side is sending to your attorney, if it is clear that the volume of the opposing attorneys communications are excessive and engaged in in bad faith, you are not obligated to suffer it.
One way that your attorney and you may be able to remedy this problem would be by having your attorney send opposing counsel an email like this:
Dear opposing counsel,
It is clear to any reasonable person that the frequency and volume of your telephone calls and/or written correspondence with our office are unnecessary, unduly burdensome and oppressive, and engaged in in bad faith. My client cannot afford to have my staff or me take such calls and read and/or respond to every one of such written correspondence. Consequently, my client has now directed my staff and me to:
spend no more than five minutes per week taking calls from anyone at your office; and
read and/or respond to written communications from your office totaling no more than 250 words.
If in a given week you honestly believe you need more than five minutes to speak with me; and/or more than 250 words to communicate in writing to me, my client requires that you send me an email (no printed letters, no faxes) stating a clear and concise explanation why. No one at the office will read your email but I will forward it to my client to determine whether [he/she] authorizes me that week to speak with you for more than five minutes and/or review and/or respond to more than 250 written words from you.
If you have any questions regarding this policy, you are welcome to call me and discuss them with me for up to five minutes this week and/or email me with your questions this week, so long as your email is no more than 250 words in length.
In court cases, how does taking an oath make any difference?
From what I can tell, yes, it appears that taking an oath or affirming to tell the truth before being questioned as a witness in a legal proceeding (whether in court or whether the testimony is being given in relation to the court proceedings) does make a difference because lying under oath or affirmation is an element of the crime of perjury. No oath or affirmation, no perjury.
Lying without being under oath or affirmation can still be a crime or otherwise punished by law in other settings other than a court proceeding (for example, lying a law enforcement officer), so bear that in mind.
Clearly, the purpose of questioning a witness in a court proceeding is to gather factual and/or honest (truthful) information to help the court decide the case. Some information is factual, meaning it is not in dispute, it can be independently verified as true. Other information is “honest,” meaning that it may not be true but the witness believes what he or she is saying is true and is doing his/her best to testify as to what he/she remembers.
If one can be convicted of lying in court or in relation to court proceedings without having sworn an oath or affirmed to tell the truth I do not know of such a law (but that’s not to say such a law does not exist). Why one cannot be convicted of lying in court without having sworn an oath or affirmed to tell the truth I do not know.
I see no good reason why a law could simply be passed that any witness is guilty of perjury if the witness, when, after first being notified that the witness is questioned in the course of or in relation to the court proceedings, the witness makes a false statement of a material fact; and knowledge of the falsity made in a proceeding, or in relation to a matter, within the jurisdiction of the tribunal or officer before whom the proceeding was held or by whom the matter was considered.
Not really, at least not in the jurisdiction where I practice divorce law (Utah).
Even if you get a “no fault” divorce (“no fault divorce” means that you don’t have to accuse your spouse of being the cause of the marriage, i.e., of being “at fault” as the reason you are seeking a divorce), technically the law still requires that there be (and that you allege in your complaint for divorce) irreconcilable differences between you and your spouse that cause continuing the marriage to be impossible.
The reality is that because it is impossible for the court to know whether there really exist irreconcilable differences between you and your spouse, you could be perfectly happy in your marriage, file for a no-fault divorce, and obtain a divorce without the court being any the wiser and without so much as batting an eye.
If I can’t find an attorney, can it honestly be said I got a fair trial?
If a person seeks legal representation in a court, and every attorney they tries to hire refuses to represent them, can he receive a “fair trial”?
That depends upon how you define a “fair trial”. Some people mistakenly believe that in the United States every litigant is guaranteed representation by an attorney in any lawsuit. This is not true. Defendants in criminal cases that involve the risk of substantial jail time are entitled to appointment of counsel, free of charge to the defendant, if the defendant so desires.
In some jurisdictions, a parent is entitled to appointed counsel if the state petitions to terminate that parents parental rights.
There is no right to appointed counsel in civil cases. so there is no right to appointed counsel in divorce actions or personal injury actions or other cases that do not involve serious, jailable criminal charges. So, if you were to claim you could not find any lawyer to represent me and to help me in my civil suit, you could not claim that your rights were somehow violated. It could thus be said that you received a fair trial, even if you were unable to find a lawyer to represent you at trial.
But if the case was a complex one, and one where a knowledge of the laws and/or regulations, as well as the procedural rules of court, makes the difference between winning or losing, having no attorney to represent you, that isn’t a fair fight. unfair, but not illegal. You have no legal recourse in those circumstances.
I have met people who have claimed that they cannot find an attorney to represent them in a particular civil action. More often than not, the reasons why are fairly clear: the person seeking representation can’t afford to pay the attorney and/or the person does not have a winning legal argument (either because that person is clearly in the wrong or because that person doesn’t have enough evidence to win or to win in the manner that person desires).
Why does someone need an attorney when they can just defend themselves in court (pro se)?
Why does someone need an attorney when they can just defend themselves in court?
It really depends on how you define “need” here.
First, understand that no litigant (except a litigant in certain circumstances who is determined to be mentally incapacitated or disabled, in which case the court may appoint an attorney for such a litigant) is required or can be forced to have be represented by an attorney.
This means you cannot be forced to hire an attorney, you cannot be forced to have an attorney appointed for you in criminal cases, even if you qualify for an attorney to be appointed for you.
So, there is no legal mandate that you be represented by an attorney, no “need” to be represented by an attorney in that sense. You won’t be arrested or fined for not being represented by an attorney.
So, from the foregoing we see that you have the absolute right (with the exception of disability/incapacity) to represent yourself in court (that’s known as proceeding “pro se”, which is Latin for “for oneself”).
If, however, prevailing in the litigation is your sole or primary objective, and if you are not well-versed/skilled/confident regarding the law and court procedures, you may determine that you cannot win without an attorney. In that respect, you may determine that you “need” an attorney. In this sense, most people need an attorney. You may have heard the old saw, “A man who represents himself, has a fool for a client.” Abraham Lincoln is reputed to have put it this way: “He who serves as his own counsel has a fool for a lawyer and a jackass for a client.” The reason this is true is because the legal system is not as simple, as non-dysfunctional (sorry, I know that’s a clunky term, but I cannot think of a clearer way to make my point, or as fair as you believe or want to believe. A lawyer is not only helpful for his/her knowledge of the law and court procedures, but also for his/her experience and ability to guide you down the dark, twisted, uphill, rocky, often counterintuitive and dangerous path that is the legal system.
If the stakes are such that you don’t mind bearing the consequences of losing the case (in other words, you can afford to pay and don’t mind paying the fine(s) and/or don’t mind doing the time in jail/prison), then it’s likely you don’t “need” an attorney; otherwise, a prudent litigant needs an attorney.
If by “older” you mean lawyers who are not fresh out of law school, the answer is: almost always yes.
They don’t teach you how to practice law in law school, they teach you how to read, research, understand, and interpret the law in law school. Law schools are getting better at providing more “clinical” experiences to law students, but law students fresh out of law school typically don’t know how to draft pleadings, prepare a case, negotiate a good settlement, and argue a case in court. I didn’t when I passed the bar. I had to learn all that through “on the job training”.
Some law students get clerkships or internships during law school that do a superb job of showing these student the ropes, so that by the time they pass the bar they have one or two years’ real-world experience in the practice of law. And some other law students are just so naturally talented and driven and autodidactic that they take to learning the practice of law like a duck takes to water.
Some say that attorneys need about 5-7 years in full-time practice before they really know what they are doing. I think that’s a good rule of thumb. Don’t pass over the less experienced prodigies if you can find them, however (and finding them will take some effort on your part). Exceptional newbies are the best value because they’re skilled yet priced lower than attorneys who have been in practice longer (notice my choice of words here: “been in practice longer” is not synonymous with “more experienced”; simply having a law license year over year doesn’t make you a skilled lawyer, so find out how active an attorney is before choosing on the basis of how long he/she got his/her law license. An attorney who has been licensed for 15 years and has no clients isn’t likely a good choice).
If by “older” you mean lawyers who are a few years short of retirement or death, then the answer is: almost always no. As with many activities, the effective practice of law is not for the old and infirm. If you don’t have the stamina to do the reading and writing and court appearances, you’re almost surely going to lose the case. Attorneys who are so old they’re forgetting details are not going to do your case any favors. Moreover, a lot of very old attorneys get jaded or complacent, lacking that fire in the belly that they need to have to motivate them to do their best work. They start coasting on their “experience,” letting their paralegal and office staff handle more and more of a case, rather than putting in the work your case needs to succeed.
You don’t. Too much at stake. Too hard to do on your own. I’m a lawyer (a divorce and family law attorney), and although I don’t drink, if I were charged with DUI (even if I knew I was innocent), I wouldn’t try to defend myself without the help of a skilled and experienced criminal defense attorney who knows DUI law and defense backward and forward.
It’s a shame that lawyers are so expensive. I get it. But a DUI can cripple you for years, even for life, sometimes. You have to defend yourself hard because no one else in the system will go to bat for you. The prosecutors and judge aren’t interested in your story (they’ve heard them all and they’re jaded beyond belief).
Do you know of anyone who decided to represent themselves pro se when the other party had an attorney in a family law case, where the pro se party was the non-custodial parent? What was the outcome?
Let me put it this way (stay with me, this really does make sense):
Most people who eat at McDonald’s or have a cheeseburger delivered to them do so by choice. Otherwise stated, they don’t need to have McDonald’s cook for them, they are motivated by the desire for McDonald’s and/or the convenience of not having to cook a hamburger themselves. They know they could make themselves a hamburger (even a better one than McDonald’s makes, and for less than McDonald’s might charge), but they choose to pay someone else to do the work.
Virtually everyone has a doctor perform a tonsillectomy, instead of performing the procedure on themselves (and yes, it is possible for you to remove your own tonsils, a woman was featured on a TV show back in the 90’s who did it with Novocain, alcohol swabs, and an X-Acto knife). They pay the doctor to do the work out of concern for ensuring their lives and health are not endangered by doing it themselves. They clearly hire the doctor to do the work not as a matter of convenience or personal taste.
Few, if any, people want to go to divorce court without a lawyer’s help. If a good attorney were provided free of charge, hardly anyone would refuse such a thing. Why? Because if pro se litigants succeeded in divorce court about as often as do people who hire lawyers do, we’d see a lot more pro se litigants in divorce court. Indeed, the pro se litigants we see in divorce court are almost all pro se not by choice, but because they can’t afford to hire an attorney.
Going through a divorce without an attorney’s help is difficult, if not impossible, to pull off successfully, and for several reasons, which I detail here:
Have any tips for representing yourself in family court? Do you have a success story as a pro se litigant?
First, my answer comes from the perspective of a divorce lawyer. Consider the source as you read my answer, sure, but don’t discount my answer because I am a divorce lawyer (I can teach you a few things that will benefit you).
Second, you need to know that there are plenty of people out there who are not lawyers but who can learn and understand how to represent themselves (that’s what pro se means—representing oneself in court instead of with a lawyer’s help and representation). You do not have to be a lawyer to learn the ropes. It’s hard to learn the ropes, but it can be done.
Third, even though people can learn and understand how to represent themselves in court without a lawyer, this does not necessarily mean that you can successfully proceed pro se. Indeed, few pro se parties take the time, have the smarts and the charm, and make the effort to succeed pro se. Are there some successful pro se parties? Yes. Are they rare and exceptional? Absolutely.
Fourth, even if you do all (or most of) the work, gather up all the evidence, and make all the arguments, you may want to hire an attorney “just for looks” in court, just to be taken seriously in court because your judge may be one who does not take a pro se party as seriously as a represented party. So as long as your attorney is good enough to stay out of your way and not do your case harm, the appearance of being represented by your attorney (even though you’re both the brain and the brawn behind your case) if often one of the best investments you can make in your case’s success.
Utah Family Law, LC | divorceutah.com | 801-466-9277
A chance? Sure. You have a chance. And you have a chance of winning the lottery, just not a very good chance of it.
You may not want to read the rest of my answer because I am a lawyer, so you can’t be faulted if you were to believe that my answer derives from self-interest. For what my assurances are worth, however, I assure you it does not. I am not only a lawyer but I have been a client of a lawyer as well. So here it is, it’s all you need to know, and you can confirm it’s true without having to take it on faith:
If people could regularly succeed in child custody battles in court without the assistance of an attorney, then people would not utilize the services of attorneys.
Otherwise stated: people do not regularly succeed in child custody battles in court without the assistance of an attorney. Frankly, even with the assistance of attorney people can often fail, but they usually fail far more often and more spectacularly.
I know that no one ever wants to hire an attorney. Very few people hire attorneys because they want one. The overwhelming majority of people who hire attorneys do so because they need one[1].
Here are some other facts that you may find helpful:
the legal system is a mess
if you are to have any real hope of succeeding with in this mess of a system, you need the guidance of someone with intimate knowledge of how the sausage is made;
it is not enough to know the rules, the law, and the lingo of the legal system; even if you were to read all the laws and all the rules that govern the legal system (and you can’t do that without quitting your job and spending all your weekends on the project), you would not understand them;
even if you did remember and understand all the laws and rules this would not help you function well within the legal system because:
the legal system does not follow its own rules fully and consistently;
the legal system is not wholly welcoming to or tolerant of those who are not lawyers
Attorneys may thus be necessary for many, many wrong reasons, but necessary nonetheless.
Utah Family Law, LC | divorceutah.com | 801-466-9277
———————
[1] and when you need one, please get a good one. The first and very best thing you can do is get a good attorney. ‘Sounds too simple, I know, but it’s the truth and simply the best advice there is. What is a “good attorney”?: one who is honorable, honest, reasonable, skilled, nobody’s fool, industrious, provides value for the money, and courageous. Not all divorce lawyers are these things, but a some who embody all of these traits do exist. Find one of them. It won’t be easy or quick (or cheap), but it’s worth the time, the effort, and yes, the money too.
If I go into a custody hearing representing myself, how come the judge will not look at any of my evidence or even give me the chance to talk?
It’s due to at least one of the two following things:
Number 1 (and most likely): the “evidence” that you believe is important or that the court needs to see is either not admissible (because you filed it incorrectly or filed it late) or it is not relevant. Relevance is defined as follows:
Utah Rules of Evidence, Rule 401. Test for Relevant Evidence. Evidence is relevant if: (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action.
When the judge rejects irrelevant stories and irrelevant documents and photographs, pro se litigants (“pro se” and “pro per” are terms for people who represent themselves without an attorney in legal proceedings) they think the court is “not listening to” or “not looking at” evidence when in fact the court is listening and considering the evidence but then rejecting it—and properly rejecting it—as irrelevant.
Additionally, the rules that govern the practice of law can be quite technical. And frankly, what many people believe to be relevant evidence is anything but. People who are not lawyers who go to court to argue their own cases usually end up wanting the court to hear and review stuff that isn’t very helpful to the court in its efforts to learn the facts and decide which party should win or lose.
Another problem with pro se litigants is their ignorance of laws and legal procedures. They don’t understand the procedures for making oral arguments in court, they don’t know how to make proper objections, they often end up filing the wrong documents, forget to file necessary documents, miss deadlines, etc. So if you’re going to try to represent yourself in court, make sure you have at least a solid rudimentary understanding of court rules and the rules of evidence. If you don’t get such a basic understanding under your belt before you go to court, you’d likely be much much better off hiring an attorney to assist and represent you.
Number 2 (and this shouldn’t happen, but it does happen far more often than you’d think): the court simply doesn’t like you, doesn’t take you seriously, has it in for you because you are a pro se litigant. Why?
(Now the next few words of mine that you’re about to read are not meant to offend you, they are simply meant to share with you some hard and unfortunate truths.)
First, the majority of pro se litigants are usually among the least intelligent of litigants. Pro se litigants are often poor and are often poor because they are not very intelligent and/or in many cases mentally ill. In fairness to our judges, it doesn’t take long for them to learn this for themselves. And thus, after many years on the bench, when they pick up a case file that involves at least one pro se litigant, most of these poor judges groan inwardly, and with good reason. Odds are that this is going to be a tough case because these pro se litigants don’t know the rules and don’t know the law which inevitably leads to procedural chaos, silly and long-winded arguments, and a lot of wasted time and wasted judicial resources. Dealing with these kinds of pro se litigants makes the job of being a judge miserable.
Second, there are many judges who take offense at the fact that someone would dare try to represent himself or herself without a lawyer. “It’s as though these pro se litigants think that they are just as good as those of us who went to college and law school without having to make the sacrifices those of us in the legal profession made.” It’s this way in a lot of other jobs and professions. Someone who can pick up the guitar and play like a master naturally is often envied and resented by those who have worked so hard to reach the same level. That’s not fair, but it is human nature, and there are a lot of judges who let this weakness cloud their impartiality and their judgment.
Utah Family Law, LC | divorceutah.com | 801-466-9277
If you don’t know what questions the judge must answer (and also the questions that the judge may want answered) to reach a ruling on your case, you are not prepared to testify.
If you don’t know what the winning answers to the questions are, you are not prepared to testify. No, I don’t mean that you need to fabricate “the right” answers, I’m saying you need to know how to honestly answer questions most effectively.
To know what the winning answers to the questions are, you will have to do your homework. You will have to learn and understand at least the basics of how the law(s) and rules that apply/applies to your case function, what factors need to be met to prevail.
If your truthful answers to the questions are not at least mostly genuine winning answers, you have a weak case. Period. There’s no way around it, unless you want to try to lie, deceive, and cheat your way to a win, which is not only illegal and morally wrong, but a risky proposition.
Utah Family Law, LC | divorceutah.com | 801-466-9277