Representing yourself in a divorce, & related suit
Divorce – Filing for Divorce
Depending on the complexity of your matter, you may be considering representing yourself (i.e., appearing before the court pro se). It is possible if your case is very simple, which would typically mean there is little property involved, there are no children, and both sides are agreeable to resolving the dispute. There are resources available to assist in the process, from document drafting services, forms approved for use in limited circumstances (no children and no houses) by the Supreme Court of Texas, and your nearby law school’s library.
In addition to the issues of your case, there are multiple variables that affect how difficult proceeding without an attorney could be. For example, family courts sometimes follow a general set of local rules for the county the court is in, but can additionally have their own set of court rules. These rules can require you to perform extra steps in one court that you would not have to perform in another, and can be a pitfall for the unwary. Another variable is the helpfulness of the court you have been assigned to. In some courts the judges and clerks may be willing to assist you if you’ve made a mistake by advising you of that mistake, briefly explaining how to fix it, and giving you extra time to do it. In other courts, the judges and staff will not provide such assistance due to time constraints or belief that it is not the proper role of the court to advise litigants appearing before it how to handle their case, and will merely advise you that you cannot proceed because of the issue and recommend you hire an attorney or speak with a legal aid program if you cannot afford one. A third example would be that certain procedures must be completed, as mandated by the Texas Family Code, Local Rules of Harris County, or the court’s rules, and failure to follow those procedures might result in your case being delayed or dismissed.
You should consider hiring an attorney if you are getting a divorce and your case involves any of the following:
- An opposing party who is represented by counsel;
- An opposing party who is not agreeable to trying to settle the case;
- Real property (homes and/or land) is owned by one or both parties;
- Significant debts incurred prior to or after marriage by either or both parties;
- Significant assets in either separate estate or in the community estate;
- Inherited property or property acquired by a party prior to the marriage;
- Retirement accounts;
- Stock options;
- Publicly or privately held companies owned by a party or the parties;
- Stocks, mutual funds, bonds, and other investments;
- Commingling of separate and community property;
- Wasting of the estate by one party, such as buying a boyfriend or girlfriend presents;
- Spousal maintenance (called “alimony” in other states);
- Child abuse;
- Spousal abuse; or
- Other special circumstances that complicate the case.
Modification – Modifying a Prior Order
You should consider hiring an attorney if you are seeking to modify a prior custody order and your case involves any of the following:
- A modification within one year of the prior order of the court affecting the same child(ren) and you are seeking to change the party who has primary custody (the exclusive right to designate the child’s residence);
- There has been a change in income of the obligor that could entitle you to more child support, or the obligor has filed a modification motion to pay less support (the Office of the Attorney General can be of some assistance in these instances);
- You are the obligor on child support and have had a change in your circumstances that should reduce your support (again, the Office of the Attorney General can be of some assistance in this instance);
- Child abuse has occurred;
- The other party, or someone residing with him or her, poses a danger to your child’s safety and welfare;
- You need to have your child removed from the other party’s custody immediately because of some credible danger to the child;
- A conservator has been incapacitated, incarcerated, or has died; or
- Other special circumstances that complicate the case.
Enforcement – Enforcing a Prior Order
You should strongly consider hiring an attorney if you are seeking to enforce provisions a prior decree or order relating to children, such as access or child support, the awarding of property, or the nonpayment of spousal maintenance (called “alimony” in other states). Enforcing a prior decree requires that you follow very strict procedures, and it will be extremely difficult to correctly handle an enforcement without an attorney, particularly if you are seeking to have the other party jailed for his or her conduct as either punishment or to coerce compliance with the prior order. Also, it is far more likely to be awarded attorney’s fees in a successfully litigated enforcement action than in a divorce because the other party’s violations of the court’s order necessitated your legal expense. As a result, you may get a judgment that, if awarded and collected, could reimburse you for some or all of your attorney’s fees.
Adoption or Termination of Rights to a Child
You should consider hiring an attorney if you are seeking to adopt a child or if you are seeking to terminate the rights of a parent to that child, whether the termination is part of an adoption or not. A termination of a person’s rights to his or her child is a very serious event, and you will have to follow very specific procedures regarding giving that person notice of the suit and carrying your burden of proof to succeed in having them terminated. Further, courts often won’t terminate a parent if there is no other adult willing to adopt the child, unless the parent poses some danger to the child (such as having sexually assaulted or abused the child). The reason for this is that the state does not want to “bastardize” the child and remove a potential source of child support, which increases the chance the child will require state or federal financial assistance. If you need to terminate a parent as part of an adoption, you should very carefully consider retaining an attorney because an improperly performed termination could lead to the adoption being invalidated should the termination ever be held void. You should also very carefully consider hiring an attorney as part of an adoption to make sure you’ve correctly handled all aspects of the adoption to make sure you can have the adoption granted and to ensure the adoption is not vulnerable to later attack.