Sunday, March 8, 2009

Representing yourself in a Divorce Case.

Personally, I would not attempt an engine overhaul in order to get my car back on the road. I might be able to read a book and get all the parts back together. I might be able to figure out how the valves, springs and all the other parts go back together, but it is likely that there will be mistakes. Sometimes reading the manual is not enough. There is a base of engine mechanics and theory that I am missing. So when it comes time to turn the key, will the engine turn over or will the car blow up?

Just as with the engine overhaul example, most pro se litigants (or those who choose to represent themselves) do not have a base of legal knowledge to know when something is missing, when something is incorrect, or when your rights are not protected. Rather than speaking in generalities or analogies, let me give you an example.

Part of the art of practicing law is to make something that appears to be innocuous but that is greatly slanted toward the attorney's client. Sometimes the danger is in what is not said, versus what is said. Here are two examples of things that can be left out of a Divorce Decree that can have a devastating effect on the rights of the unaware.

1) Most divorce decrees are drafted so as to foster a continued relationship between parent and child. As a result, attorneys will advocate for the placement of a geographical restriction in the Decree. Most judges will order a geographical restriction if there is a request as long as it is not unduly restrictive. A commonly used restriction, is that the custodial parent is restricted to their county of residence and "any county adjoining" that county. This type of restriction allows for reasonable movement, but prevents the custodial parent from leaving the State -- or even country -- with the child. As a result, even though it looks reasonable for the custodial parent to have the right to choose the primary residence, it would be view by most non-custodial parents as unreasonable for the custodial parent to move to the other side of the world. However, if there is no geographical restriction, this is just what could happen.

2) Most divorce decrees have a "Standard Visitation Schedule," or similar schedule. There is a reason for this. The Standard Visitation Schedule says that the schedule is what happens when the parents cannot "mutually agree in advance." This means that the schedule itself (i.e. - the first, third and fifth weekends) is only when the parents cannot agree. Sometimes an attorney (or a party) will omit the visitation schedule from the Divorce Decree in favor of a "feel-good" provision that the non-custodial parent will have visitation whenever the parties "mutually agree." Although this sounds good, this provision is basically worthless. So what happens when the parents disagree? Nothing happens. The visits only occur when the custodial parent wants them to happen. So if the custodial parent thinks the non-custodial parent does not need to visit, then no visit occurs.

As a result, if you are a non-custodial parent, and your Divorce Decree omits a possession schedule and has no geographical restriction, your spouse could move to any part of the world and completely deny you visitation. You would need to then sue to try to get the Court to order your spouse to move back. My point is this -- sometimes you read these legal documents and they appear to be fair; however, appearances can be deceiving. Get an experienced family law attorney and be sure.