In Virginia, there is no requirement that you hire an attorney to represent you in a divorce or custody case, whether at the juvenile or circuit court level (or even beyond, if your case merits an appeal).
If you choose not to hire an attorney, you represent yourself. We call people who represent themselves pro se litigants; pro se is Latin for ‘on one’s own behalf’. It doesn’t mean that you don’t have an attorney; it means that you are opting to represent yourself as your own attorney.
I think this is a pretty important distinction. You’re not going WITHOUT an attorney, you are taking on the responsibility yourself. Without a law degree or passing the bar, and, in all likelihood, with no real life experience. Representing yourself. In a real court. With real life consequences.
If it sounds easy, it’s not.
If it sounds hard, well, frankly, that’s probably an understatement.
I can see how handling your own divorce could be hard in some situations, but we’re in agreement on pretty much everything.
That’s so good! I’m glad to hear it. Divorce is definitely easier when it’s amicable and when the parties have a good idea, up front, how they’ll divide things. Many of the easiest cases I’ve had are ones where the parties come in with a good idea of what they want done.
A couple questions though…
Are you familiar with what, specifically, you’re entitled to receive in a divorce? Your share of retirement, for example? Do you know the cost of what you’d be waiving?
Are there children in common? Do you have an agreed upon custody and visitation schedule? What about child support?
Is spousal support an issue?
I don’t mean that this is an exhaustive list of questions, but it is where a lot of issues tend to occur. I find that lots of women don’t know, for example, that they’d be entitled to a share of the retirement earned during the marriage. Their husbands tell them that they don’t have an interest, and they just take his word for it.
Keep in mind, too, that it’s not just assets that need dividing. The liabilities – like the credit card debt – needs to be divided as well. Do you have debt? Do you have a plan in place for who’ll be responsible for it? How will you divide responsibility?
Make sure you ask questions and know your specific rights and entitlements – including what it costs you, over the long term, to waive an interest in something.
Sure, you may choose to waive an interest in something in order to get things done quicker (hey, it’s a bargained-for benefit, for sure), but that doesn’t mean that it should be your default mode or that you shouldn’t consider the cost to yourself over the course of your career. Retirement dollars may not feel like much today, but … can you replace what you’ve waived?
It’s not just a question of retirement, either. You get one ‘bite’ at the apple, as they say, and no do-overs. Only custody, visitation, and child support are modifiable, so you need to be sure that you’re good (like, real good) with the terms of the agreement as you sign it. You won’t be able to un-sign it later, if it turns out that you made a bad deal. Even if you didn’t read it, didn’t understand it, didn’t know what the law allowed, or literally almost anything else, you will not get that agreement overturned.
No, all good? You still think you’re more or less in agreement? Good!
Yay! If you aren’t going to fight over custody or spousal support, and if you’re willing to agree to divide all the assets and there’s not going to be a ton of bickering (though I still maintain that you should know exactly what you’d be waiving, if anything, and what the cost of it would be to you over the long term, not just today), let’s move on.
Are you going to draft a separation agreement, or are you going to litigate?
You have to choose. Either you draft a formal contract dividing the assets, liabilities, and responsibilities between the two of you, or you go to court and let a judge decide.
Is it hard to draft a separation agreement?
Ummm. It’s hard to answer that question. For me, no, it’s not particularly hard – with a few exceptions. But there aren’t form documents all over the internet, and sometimes it is hard to come up with clear, concise, specific language to divide everything you’d need to divide. Then again, I’ve probably drafted hundreds, and read a few hundred more.
You’ll want to include EVERYTHING – from what happens in the case of omitted property or bankruptcy, if someone challenges the agreement or doesn’t follow it, if you want to modify the agreement later, and where future issues will be adjudicated. Not only that, but you’ll want to put in each specific right, entitlement, item of property, or responsibility that you’ll be dividing. Yes, even if you’re just specifying that separate property will still belong to the party who brought it into the marriage.
Basically, it needs to be so comprehensive that even a judge – who knows nothing about your case – would be able to pick up your agreement and tell to whom each item belongs and how to trace it and what its worth and all of the other relevant information. It’s not necessarily that difficult, but it is comprehensive – and it probably also bears mentioning that, after years of experience, we’ve really honed the language we use to make sure that its most effective for the clients we’re protecting. Not only that, but we’ve got experience in these things so even for the more unusual provisions that we add in (you know, those completely customizable ones), we’re pretty used to the language we need to use so it’s not nearly as difficult as it might be for someone who has little to no experience drafting legal documents.
What if we make mistakes? Can we go back later and fix them?
Mistakes in agreements are hard to fix – and sometimes impossible. In order to go back, you’ll usually have to negotiate a whole other agreement that specifies your new terms.
The catch-22 with an agreement is always the same: it’s not enough for one party to want to make a change and even to draft the agreement. Both parties have to agree to make a change.
I would not encourage you to go into this thinking that it’ll be possible to change your agreement later.
I’m too nervous to draft an agreement. Can we just go to court and litigate?
Sure. But that’s a divorce trial. You’ll need evidence, witnesses, exhibits…
Can I hire an attorney to draft my agreement, and then get the divorce entered myself?
Yes. Lots of people do that! Either they hire an attorney to draft the agreement, or they work with a mediator. In any case, the goal is to get the separation agreement in place. Personally, I’m partial to making sure that an attorney – at some stage – reviews the proposed agreement before its signed, but it’s not a legal requirement. You’re free to sign at any point, but just beware. Read it, understand it, ask any questions that you have, and understand that it is unlikely to be overturned later.
But, once the agreement is in place, you’ll still need to finalize the uncontested divorce. That’s just a matter of paperwork – a complaint, service on the opposing party, a final divorce decree, maybe a QDRO or TSP order, a name change order (if you’re changing your name), confidential addendum, VS4… you know, the works. But you can do it!
Like anything else, it is important to be completely accurate. It’s often hard to find templates to use, especially if your case is out of the ordinary at all.
I don’t mean to be discouraging, but I hate to think of women going into this thinking that it’ll be quick or easy. In fact, a marriage being short, having nothing to divide, or mostly being in agreement about the division doesn’t actually mean that the process of getting a divorce is any more straightforward to navigate without hiring a licensed attorney.
The cost of mistakes can be astronomical. I’ve seen women draft agreements for themselves that were worse than what their husbands’ attorneys would draft for them. I’ve seen pro se litigants struggling to get an uncontested divorce entered.
It’s not necessarily that its hard, but its challenging to navigate with no experience. There are a lot places where mistakes – costly mistakes – can be made, and very few avenues to correct those mistakes once they exist.
I get it. Not everyone can afford an attorney. I’m not tone deaf and I can read a room. You’re scared. It’s overwhelming. It would be nice to think that, in this way at least, you could make things a little bit easier on yourself.
You can always consult with an attorney. Hire them or not, it’s totally up to you, but at least you’ve consulted and have an idea of what your rights and entitlements are, or where you’ve gone wrong if you’ve drafted your own agreement and/or pleadings and are attempting to move forward with your case pro se.
Also – we can help! Download a free copy of one of our divorce (or custody!) books for Virginia women (or military spouses/female active duty military servicemembers). You can attend one of our monthly divorce seminars, or even our Custody Bootcamp for Moms. You’re not alone. You have options.
I won’t mislead you; what you’re looking to do is tough. It’s not impossible, but its an incredibly tall order. Take the time, ask the questions, get the answers you need to do yourself (and your case) justice.
For more information, to schedule a consultation, or to request a copy of one of our free books or reports, give our office a call at 757-425-5200.