There aren’t really any rules here. You’re technically allowed to represent yourself in any custody and visitation or divorce case in the Commonwealth, so there’s no requirement that either you or he must retain counsel in order to move your case forward. Of course, it’s much easier if you have counsel to help you navigate the complexities of litigation, but it’s definitely not required – so it does sometimes happen that one party wants to hire counsel and the other party, for whatever reason, does not.
Is it a bad thing if I have a lawyer but my husband/child’s father does not?
As a lawyer, it’s a bit of a tricky situation to be in. We have to be very careful how we communicate with unrepresented parties, because we can’t be seen to be pressuring them, giving advice to them, or doing anything that would sway them into behaving in a certain way. With opposing counsel, we can have much more candid conversations than we can have with an unrepresented party.
For your purposes, though, it probably doesn’t make much difference. Your attorney will help you navigate the system, filing the right things at the right time, responding to everything by the appropriate deadlines, and so on. Your attorney can give you insight into the type of case you’re facing, what a hearing or trial might look like, how a particular judge might rule on a particular issue, how to work with a Guardian ad litem, and so on. You’ll be guided through the entire process.
Obviously, him not having a lawyer puts him at a disadvantage. The courts – judges and clerks especially – are very cognizant of this, and, as a result, will probably give him leeway that will irritate you. When you hire an attorney, the court assumes your attorney will both know what the rules are and follow them. When you’re pro se – the Latin word we use to describe a party participating in a lawsuit without assistance of counsel – the judges expect you to slip up. The court may give him additional opportunities to do things like respond to discovery, or let him run amok a bit in any trial or hearing that you face.
Don’t be mistaken, though – just because the judge may relax the standards a bit for an opposing party doesn’t mean that he is winning. In fact, I think it’s pretty unlikely that an unrepresented party could present any kind of credible divorce or custody case without hiring an attorney. It’s already a pretty complicated area of law, and when you combine the difficulty of navigating all the various rules and deadlines, it would be borderline impossible – in my personal opinion – for a pro se party to do a particularly good job.
So, why, then, would a judge give him extra latitude?
As frustrating as it can be to witness, especially when you think that your husband/child’s father is getting away with things that you couldn’t get away with, judges often let parties that they intend to rule against go on and on in a hearing. It’s a subtle psychological trick that allows them to let the opposing party feel heard – which reduces the likelihood that they’ll try to appeal the case – and then rule in the particular way that the judge feels is most supported by existing law. It’s actually really clever, even if the experience on your end might not feel as validating as it otherwise might.
Since I’m represented by a lawyer, does that mean I will definitely win?
No, not necessarily. Whether a case is won or lost is entirely dependent on exactly what the law is. If you’re trying to defend an undefendable position, you may very well end up losing – even if you have an attorney and he doesn’t.
We can’t just completely steamroll an unrepresented party if the law is in their favor. That being said, though, I think that a situation where the represented party is wrong about the law and the unrepresented party is right is a fairly unlikely scenario – I just wanted to underscore the fact that it’s the law that rules in these cases, not the lawyers themselves.
A lawyer, though, will follow the rules and present the evidence, witnesses, and exhibits in a way that follows the court rules and makes strong logical sense. In my experience, an unrepresented party has no idea what to present or how to do it, so even an otherwise strong case will appear muddled and jumbled. They often have no idea what the most important points even are, and end up glossing over or ignoring or not even mentioning them.
Since I’m represented by a lawyer, does that mean I have to follow the rules and he doesn’t?
Well, yes and no – I think that it’s clear that you’ll have to follow the rules. It’s also not quite true that he doesn’t have to follow the rules; technically, of course, he does have to follow all the same rules that you do. I do find, though, that unrepresented parties are given a bit more latitude than represented parties, which can be a frustrating experience to the represented party who feels like the rules are enforced against them.
The question is, though, would you rather go head-to-head with him without representation? You could BOTH be unrepresented, if you’d prefer? I don’t think that’s a good option, but that’s the only other option that you have. Either you continue on with your representation, or you are BOTH unrepresented.
Ultimately, obviously, having an attorney who knows the law, who is experienced in presenting a case, who likely has ongoing relationships with the judge and the Guardian ad litem and opposing counsel, who can push for your specific advantage, is going to be way better for your case overall than a little flexibility on discovery deadlines or something similarly inconsequential.
It’s often very annoying dealing with unrepresented parties, but you’ll find that you’re in a better position than if you didn’t have an attorney at all. There’s nothing we can do to force him to get an attorney to even out the playing field and, even if we did, you’d probably hate the way that feels, too. (I find that my clients really, really, really hate opposing counsel, even if he/she is has not been bad during the course of the case!)
It’s an uncomfortable position to be in – by which I mean that facing a divorce or custody case is difficult – and, no matter what, you’re going to feel some discomfort in the process. At least you know that, through it all, you have a licensed and experienced attorney in your corner, fighting for your advantage, no matter what choices he makes.