There’s a lot of Latin in the law and, what with it being a dead language and all, there are very few people who speak or understand Latin, beyond the obvious ‘habeas corpus’ stuff. It’s kind of interesting how often we come up against Latin terms and phrases to describe things in the law; it’s something that, despite really trying hard to move towards using more plain English in our work, seems to linger on.
“Pro se” is one of those phrases.
What does ‘pro se’ mean?
In Latin, pro se most directly translates to ‘for oneself,’ or ‘on one’s own behalf’. What it means, in practical terms, is to represent yourself in a court case without the assistance of counsel. You can be pro se – representing yourself – in any area of law, but, being a family law firm, I wanted to write a little about representing yourself in a divorce or custody case in Virginia.
Can I represent myself in a divorce or custody case in Virginia?
Divorce cases are handled in the circuit court, and custody, visitation, child support, and spousal support (when outside of a larger divorce action) are handled in the juvenile court. Anything decided at the juvenile court level can be appealed de novo (again, Latin – this time, meaning ‘from the beginning’ or ‘anew’) as a matter of right, so you could essentially find yourself litigating two trials. Appeals beyond that point are not heard as a matter of right, so it’s more difficult (and much more rare).
In either the circuit court or the juvenile court, you are allowed to represent yourself. From a technical standpoint, a trial is difficult at any point in time – but it’s especially difficult without an attorney (and when you’re emotionally invested in the outcome). A juvenile court case is easier to handle without an attorney because, typically speaking, the courts are more user friendly, the clerks are more likely to give assistance (though they’re not allowed to give legal advice), and the judges are more accommodating to litigants. I’m speaking in generalities, though; you may find that’s not the case in your juvenile court.
Another appealing factor about the juvenile court is what we’ve already discussed: the automatic right to appeal. If you get a result you don’t like, you can hire an attorney for your appeal. Sure, you’ll be bound by the lower court’s ruling unless and until you get a different result in the circuit court, but at least you can have a brand new trial.
In the circuit court, the clerks tend to be less friendly, the rules more strictly enforced, and the judges much less tolerant of litigants who don’t follow all the rules of court. In any case, you should be aware of the local rules, the deadlines for responding and filing documents, and those types of things, but it’s definitely a situation, in the circuit court, where you need to be more informed.
Should I represent myself in a divorce or custody case?
Eeks – the million dollar question. Whether you can and whether you should are definitely totally different questions, with totally different answers.
Is it possible? Sure, in some cases. Is it wise? Mmmm, probably not. In general, I think it’s a good idea to at least meet an attorney one on one for a consultation, or at least attend a divorce seminar, before you jump to make the big decision to represent yourself. I know it seems like attorney’s fees are really expensive, but oftentimes I find that the things that women unknowingly walk away from cost far more. If you think about it, the majority of divorces divide tens of thousands, if not hundreds of thousands of millions, of dollars in assets – and even liabilities. Making sure you get your marital share of the assets (and AVOID his marital share of the liabilities) can be worth THOUSANDS – more than you’d pay to an attorney, and certainly more than the cost of the consult fee with a licensed and experienced local family law attorney.
It’s hard for me to answer this question into the void, without knowing any specifics. In general, it’s risky. In a specific situation, it might be fine – but I do think that you’re well advised if you’ve talked to someone on your own about your specific case and the issues it involves.
What if he has an attorney and I don’t – or vice versa?
There’s no requirement that you have attorneys at all, let alone that you both have attorneys. I don’t like to see a woman without an attorney up against a man with one; there are just too many opportunities to miss out on your legal entitlements.
The judge won’t force him to pay your attorney’s fees, though, and no one will really look twice if you choose to be unrepresented. Will you miss out? It’s hard to say, but you can be sure that your husband’s attorney is not working to represent YOUR interests.
A family law attorney CAN’T represent both parties, so don’t be lulled into a false sense of security thinking that his attorney will do anything to promote your interests, make sure you know your entitlements, or do anything other than encourage you to seek the advice of your own independent counsel. That’s just not how it works.
In other areas of law – estate planning comes to mind – it’s possible to share an attorney with your partner, but divorce (because your interests are adversarial) is not one of those areas.
Being pro se is difficult, and definitely requires that you’re pretty familiar with the laws of the Commonwealth, and the local rules of the court in which you’re appearing. It’s a risky choice, and one that I definitely can’t just recommend that you make without at least speaking with an attorney about what’s involved in your case.