When it comes to having to go to court, it’s a little too easy to be the ostrich, burying your head in the sand. Most of the time, though, that response won’t help you at all; in fact, depending on the type of case you’re facing, you could really be hurting yourself.
If you don’t take action relatively quickly after realizing that you have a court date looming on the horizon, you’re probably cheating yourself out of incredibly valuable prep time beforehand. Whether or not you choose to hire an attorney to represent you at your hearing, there are still lots of things you could be doing to make sure that you’re ready to go on the day of your hearing. Don’t be the girl scrambling to grab all the things the moment your case is called. Be prepared, and walk into the courtroom with your head held high.
Of course, how much you’ll need to prepare (and whether you’ll need to hire an attorney) depends entirely on the type of case for which you’ve been served. There are any number of things that could require you to appear in court but today I’m only going to talk about potential family law cases you could be facing, including what you can expect to happen at each hearing and (the all important question) whether you should bring an attorney when you roll up in to that courthouse.
Divorce Cases: In the Circuit Court
If you’ve been served with a complaint…
If yours is a divorce case, you were probably first served with a complaint. A complaint is a legal document that formally opens a divorce case. It sets forth the specific allegations (like, for example, adultery), the evidence supporting those allegations (at this point, the grounds don’t have to be proven, the other party just has to provide the specific groundwork necessary to support that they have a reasonable belief that the allegations exist), and requests relief. In the case of a divorce, a complaint requests everything it is possible to get—custody (if there are children involved), support, and equitable distribution (that’s the fancy word we use to describe how property is divided in Virginia).
Once you’ve been served with a complaint, you have 21 days to respond. There’s not necessarily a court date set at this point (though you can probably expect that one will come soon), but you’re going to have to do something, soon, or risk your case moving forward (and your assets being distributed) without further notice to you.
After 21 days, your case can move forward. If you haven’t responded, you’ve given up your opportunity to do so. “I didn’t know,” or “No one told me,” is not enough to get around the 21 day rule. (It’s not a rule we’re just making up; it’s a statute.)
If you’ve been served with a complaint for divorce, even if there’s no return date listed for you to show up to court, you definitely want to take action now. Make sure you pay attention, too, to what the specific grounds for divorce are—if yours is a fault based divorce, meaning that your husband is using adultery, sodomy, buggery, cruelty, apprehension of bodily hurt, desertion, abandonment, or felony conviction as his grounds, you’ll definitely want to be a little extra wary. Regardless, though, your divorce will be contested (meaning that your husband is asking a judge for help dividing things), so that definitely ups the ante a little, too.
Usually, we recommend that people facing fault based or contested divorces (a fault based divorce is always contested, but a no fault divorce can be either contested or uncontested) should seek help from an attorney. These divorces are typically the most difficult, especially if you’re attempting to represent yourself. Can you do it yourself? Technically, the law allows you to represent yourself. But should you? Honestly, as much as I’m a proponent of doing things yourself when and if you can, I have to say no. Talk to an attorney—soon. The clock is ticking.
If you have a pendente lite hearing coming up…
In a contested divorce case, a pendente lite hearing is usually the first time you come in front of a judge. It’s a big deal! Pendente lite is Latin for “while the litigation is pending,” and it basically handles everything on a temporary basis. From spousal and child support and custody (this is a biggie!) to avoiding the wasting of assets, prohibiting interference or harassment at work or home, and granting one party exclusive possession of the home, the point of the pendente lite hearing (or PL, as most attorneys call it) is to make sure that everything important is taken care of during the litigation. That way, no one party keeps all the money and lets the other party struggle.
It’s a pretty important hearing, even though the judge won’t hear anything about either party’s fault, especially if you have children or are in desperate need of support. This hearing is a one shot type of deal so, once your opportunity has passed, you won’t be able to get back into court later to try again.
If you’ve been notified that you have a pendente lite hearing coming up, you’ll definitely want to talk to an attorney. At this point in the case, you’ll definitely want to at least consult with an attorney to make sure that you know what you can ask for (and what you might reasonably receive) in a pendente lite hearing.
Much like with mediation, it’s a really bad idea to go in to a court hearing (or mediation or negotiation) with NO IDEA what you are likely to receive. Talking to an attorney can give you an idea of what you can ask for (and what’s reasonable to expect), so that you don’t come in out of left field.
Custody Cases: In the Juvenile Court
Custody, child support, and visitation are handled at the juvenile court level when they aren’t a part of a larger divorce action. This can happen in lots of different situations, like if mom and dad were never married, or if mom and dad are already divorced and need some help modifying custody, visitation, and support issues later.
The major advantage of the juvenile court is that anything that happens there is appealable to the circuit court. So, most of the time, it’s possible to represent yourself. Worst case scenario is that, if the judge makes a ruling that you’re unhappy with, you can appeal to the circuit court. The appeal is “de novo,” which is a Latin phrase that means you’ll get to try your case all over again, from the beginning. Nothing from the circuit court comes up with the case, so the judge will get to hear it like it’s a brand new case without the opinions or decisions of the lower court judge clouding his judgment.
So, if you’re considering representing yourself at any stage, the juvenile court is probably the best place to do it.
What can you expect to happen? Well, it depends on the case, but normally, in a custody case, the first date that you’ll see on your paperwork is what’s called an “initial appearance.” In an initial appearance, unless one party doesn’t show up, the judge’s goal is just to set a date for a trial. Very little actually happens at this appearance, but it is important because it’s the first time that you sit in front of the judge. (Don’t ever underestimate the importance of making a good impression right out of the gate!)
Because an initial appearance is fairly “easy,” as far as court cases go (though I do hesitate to use that word, because it’s not like things can’t go wrong at an initial appearance), you may be fine to represent yourself at this stage. Whether you intend to represent yourself throughout the entire case, or whether you just want to save yourself some money by appearing at this hearing without an attorney, the choice is definitely yours.
Appeals: In the Circuit Court or at the Court of Appeals of Virginia
Appeals are hard. Whether you’re appealing a juvenile court order to the circuit court, or whether you’re trying to appeal a circuit court order up to the Court of Appeals of Virginia, it’s going to be difficult.
Juvenile courts have a reputation for being fairly user friendly, but that’s a courtesy that stops after you leave the juvenile court. Circuit courts aren’t particularly user friendly, and the court of appeals is definitely NOT user friendly. You won’t find that many clerks will be particularly helpful (it’s not their fault; they aren’t supposed to offer help or give legal advice, and could get in trouble for doing it), and it’s difficult to navigate the complicated web of laws and procedures.
If you’re planning an appeal, you’ll definitely want to talk to an attorney—the sooner the better.
In Virginia, you can represent yourself in a custody or divorce case at any stage in the process, but you do have to ask yourself whether you think that there’s any advantage to doing so. What’s the point in avoiding hiring an attorney if it costs you more in the long run than it would have to hire the attorney to begin with? Obviously it’s always a pretty complicated weighing of advantages and disadvantages, but, at the end of the day, you have to ask yourself whether you think you’ll be able to get the results that you want.
Still wondering? You know, you can schedule a consultation with an attorney just to get information if you want. You don’t have to actually hire. Talk to an attorney about your case, possible results, and what hidden land mines you might uncover. Where will you run into trouble? What’s easy? What do you need to know before you make the decision to represent yourself?
You can even meet with the attorney more than once, if you want, just to take advantage of his or her knowledge and expertise. If you’re not comfortable with hiring an attorney, this is a great option because it allows you to get some advice but still handle things on your own, if that’s what you’re determined to do.
For more information or to schedule an appointment with one of our licensed and experienced Virginia divorce and custody attorneys, give our office a call at (757) 425-5200.