The Basics of Representing Yourself in Divorce Court
Pro Se Representation Is When You Represent Yourself
In the United States, pro se legal representation is when you represent yourself in court instead of getting a lawyer to represent you. Pro se is Latin for "for oneself" or "on one's own behalf". In the United Kingdom, Australia and New Zealand, the phrase is "litigant in person".
Every person has the right to self-representation. However, sometimes government legal aid is provided to people in certain situations. For instance, people who are charged with serious crimes will often have legal aid if they cannot afford a lawyer. You can also choose to represent yourself, but the courts do not really like it. They understand that need for it, but courts are usually busy places with many cases to get through. When there are no lawyers to assist the court, things take much longer and the lists are not cleared quickly.
However, divorce is one of the few situations where self-representation is quite normal. Sometimes, a divorce can even be heard 'on the papers'. This means that you might not have to go to court for a hearing and the matter can be dealt with in your absence by a judicial officer in chambers. If your case is like this, or if it only involves a few small issues and there will only be one hearing, you can save lots of money by representing yourself.
You Can Get a Divorce "on the Papers"
You might not have to go to court to get your divorce. In Australia, if the divorce is by the consent of both parties, there are no children under the age of 18 from the relationship (this includes adopted and stepchildren) and there are no other property or money issues, the process can be done in your absence. You just have to fill out some forms, serve them, get the other party to sign them and pay just under $600 in filing fees. It takes several weeks or months for it to be finalized, but once your forms are filed, all you have to do is wait.
Before you get a lawyer for your simple divorce:
- Check the requirements in your jurisdiction by going to your local family court website.
- Look for a fact sheet about divorce.
- Read the applications form to see what sort of information you need to provide.
- See if you qualify for a divorce on the papers.
- See how much it will cost to file.
- If you are in doubt or it looks to complex, then think about spending money on legal advice.
- Go to a local community legal centre for some free advice. Some community legal centres will help you fill out the forms.
- The forms should be typed and not written, affidavits should be in the correct form—usually you can download them from the court website and type your information in.
What if I Have to Go to Court for My Divorce?
If you have a slightly more complicated divorce where you and your former spouse have children under 18 (including adopted and stepchildren), then you may have to stand before the judge to get your divorce.
The reason for this is that the court has an obligation to ensure that the welfare of children is being met by the parties. If dependent children are involved, you will have to explain who is responsible for the care of the children and what contributions are being made. If you and former spouse have no custody disputes and have not had to get a parenting plan, often this is just a simple appearance before the court where a few questions might be asked and then the application is granted. I have seen these sorts of things take less than five minutes. If this is all it is going to be, you might be better off saving your money and doing it yourself instead of getting a lawyer.
Get Familiar With the Layout of the Courtroom
You have all seen courtrooms in the media: the magistrate, judge, justice or registrar (judicial officer) sits on the bench, which is usually raised and at the rear of the courtroom. In front of the bench, there are often spaces for bailiffs, court clerks, transcribers and other junior officers of the court.
Facing the bench is the 'bar table' where the plaintiffs, defendants, respondents and prosecutors sit to make their applications to the Court. Often, if the parties are legally represented, the applicant and the defendant will sit at the bar table alongside their lawyers.
Depending on your jurisdiction, the defendant/respondent will sit to the left and the applicant/plaintiff will sit to the right. Prosecutors generally sit to the right. Behind the bar table and also facing the bench are the seats for the public. Sometimes the court is closed, which means that no uninvolved parties are allowed in.
Depending on the type of court, there will be a gallery where the jury sits off to one side. On the other side, there might be a dock for prisoners to sit in. There will also be the witness box, where whoever is giving evidence will stand/sit to address the court.
If you are appearing as an applicant in a divorce matter, you should go to the right side of the bar table when your matter is called by the clerk or bailiff and address the bench from there. Go and watch a few cases just to see how they go—this will be of great assistance if you plan to represent yourself.
What to Do on the Day of the Hearing
Always arrive at least half an hour early. Sometimes it takes time to get through security, so factor this in. Know which courtroom you need to to be in. You can find this out by looking at the court's website—they usually publish lists the day before advising which courtroom you have to go to and which judge or judicial officer will be conducting the hearing.
Courts often hear things in lists, so there may be no set time for your case alone—it might be in a group with the other cases. You might have been advised to attend at the time when the list will start. If this is the case, what happens is that the judicial officer will go through the list and do the very short matters on the spot and also provide a time, and sometimes another courtroom, for the longer matters. In some courts, this process is referred to as "callover".
When your matter is called on, you will need to identify yourself and tell the court what you are seeking, answering any questions. In a simple divorce application that involves no conflict, this is all that it may be. Your former spouse will often be there to confirm the information. If you have filled out the forms correctly and provided the right information, your decree should be granted.
Make Sure to Be Respectful and Have Proper Etiquette
It is vitally important that any litigant is respectful in court. A little bit of respect will go a long way.
- Dress appropriately. Wear a suit and tie if you are a man, and a woman should wear the sort of clothes she would wear to an important job interview or another formal occasion, such as a citizenship ceremony.
- Children should never be brought to court as they are disruptive. They may hear and see things that no child should be exposed to.
- Do not wear hats, sunglasses or earphones.
- When you first enter the courtroom, if there is a judicial officer present, the custom is to bow or nod your head towards the bench.
- When the judicial officer enters or leaves the courtroom, stand up.
- When you speak to the judicial officer, stand up.
- Make sure your mobile telephone or other electronic device is switched off or on silent.
- Do not eat or drink in a courtroom.
- Always address your remarks to the bench, never directly to the other side.
- No matter what the other side is saying, do not interrupt. Your turn will come.
Speak Properly in the Courtroom
It is very important that you speak clearly and concisely. Courts are busy places and will appreciate it if you get to your point quickly.
- Stand up when you address the bench and always speak loudly enough to be heard throughout the room. However, do not shout.
- Speak politely and address the court respectfully as "Your Honour" or "Registrar" if it is a registrar. I saw one poor man get sent to the cells for addressing a magistrate as "mate," the Australian equivalent of "buddy" or "pal".
- If the court does not want to listen, respectfully insist: "Your Honour, with all due respect, my submission is that..." Remember that you may not get another chance to get your point across.
- Remember to speak at your own pace—if you hurry you might forget to say something you wanted to say. So long as you don't waffle, you should be heard.
Court Is an Extremely Formal Place
Court is one of the most formal places in any society—it's not really like Judge Judy! It is the place where some of the most important decisions about peoples' lives are made by men and women who take their roles extremely seriously. It cannot be stressed how formal this environment can be, though this depends on the judge and on the type of case.
I have seen litigants censured from the bench for not wearing a tie. On the other hand, I have seen litigants asked to approach the bench to have a more friendly style of communication. You never really know what could happen. Even if you have been watching the judge to learn his style, he still could be having a bad day. Never assume it is going to be relaxed or conversational. Always be prepared for the worst!
Importantly, magistrates, judges and justices have the powers to lock people up for contempt. Contempt includes poor behaviour and a lack of respect for the court. A person can be in contempt whether they are before the court for a minor offense, such as a parking matter, or for something as serious as murder. Contempt is about the way a person behaves in court and not the reason they are there. I have seen magistrates and judges send people down to the cells to "cool off" for a few hours or a few days just because the person spoke to the bench in a disrespectful manner.
You May Need to Get Some Help if Your Divorce Is More Complex
Complex divorces involve simultaneous applications dealing with property division, custody and spousal and child maintenance. These applications should be settled before a divorce is granted, and are often dealt with at the same time.
If you and your former spouse cannot agree on who the children should spend time with and how the property of the marriage should be divided, you might have to go to court to litigate a solution. I do not recommend this. You will have to do family dispute resolution and come up with a parenting plan before going to court anyway, so why not try to agree on all the problems?
In Australia, you are looking at least $25,000 for the most basic dispute. I saw one matter where the applicant spent over $100,000 on a trial that he then appealed. He ran out of money and then had to do the appeal himself. In the end, all of the marital property was sold to pay the lawyers.
A good way to start sorting this out is to go to mediation. If that doesn't work, get a lawyer to negotiate a settlement with the other party for you. Then you don't have to face the other person and risk getting angry and going nowhere. When you have to go to court, no one really wins—except the lawyers.
The do-it-yourself divorce is best suited to situations where there is no conflict between the parties about property, children and maintenance. If your divorce has complex issues, at least get legal advice before proceeding.
Get Legal Help if You're Not Prepared
If you are not confident, there are plenty of good books to help you. If after that you are still not confident, you can pay a lawyer to help you do all the paperwork and to give you advice on how to proceed, without paying for the lawyer to appear for you.
Sometimes the most expensive part of the process is the actual hearing in court. This way, you can gain some confidence and save some money. Most lawyers are willing to settle documents for you. However, if your knees are knocking at the thought of going to court and standing up before a judge, you better get a lawyer!
Why Is Family Law so Expensive?
Family law is expensive because it is rarely dealt with quickly. This is because:
- It is procedurally technical and more complex than areas like crime, so you have to get each step and each form perfect.
- It can be difficult to get take about the real issues because of the emotional nature of the parties. Sometimes there is not a lot of truth being told initially.
- The welfare of any dependent children must be investigated by the court.
- It often involves a lot of negotiations and mediations over time, as well as valuations and investigations of the parties true positions—especially considering tax and superannuation matters.
- The division of things like businesses, the family farm and superannuation are, by nature, complex.
Would you be confident representing yourself in court?
This article is accurate and true to the best of the author’s knowledge. Content is for informational or entertainment purposes only and does not substitute for personal counsel or professional advice in business, financial, legal, or technical matters.