So, you want to represent yourself in a family law case in Smith County or Gregg County or some other county in East Texas. Well, although I don’t recommend it, sometimes money is tight. Or sometimes the other party in the case doesn’t have an attorney, so it doesn’t seem too risky. Maybe you simply think you can get it done without an attorney. I don’t fault you for wanting to go it alone. In fact, I respect that. But I would urge you to consider a few things before doing so. If you still want to proceed “pro se,” which in Latin means “on one’s own behalf,” I wish you the best of luck. I’ll list some resources at the end of this post that could be useful.
Considerations before representing yourself in court
Judges don’t have to “take it easy” on you:
Contrary to what you might think, you will not be given any passes because you are a layman and not an attorney. If you didn’t go to law school, you likely won’t have a working knowledge of the Texas Rules of Civil Procedure, the Texas Family Code, or the Texas Rules of Evidence, or even the local rules of the court, etc. Judges generally don’t care. Judges can’t give you legal advice, and thus can’t lead or aid you in presenting your case.
What does this all mean? It means if you show up to court for a hearing, say to “prove-up” your divorce, and you haven’t filed the right petition, given proper notice to the other side, or established your legal entitlement to certain relief, the Judge doesn’t have to (and isn’t supposed to) tell you what to do. The bottom line is: The Judge will treat you like he would treat any attorney. This is frustrating for pro se litigants. My colleagues and I often see pro se litigants in court, frustrated when they don’t get what they want. They become especially frustrated when the Judge says something like, “I can’t give legal advice, you will need to get an attorney.”
You can represent yourself pro se, but it will take time and effort
I hesitate to tell prospective clients that they cannot represent themselves. The truth is, the practice of law is not rocket science. In law school, my professors pointed out that the practice of law doesn’t require great intelligence. It takes a good deal, yes, but not great intelligence. It requires analytical and communication skills, but more importantly, the willingness to learn. Practicing law also requires the humility and perceptiveness to know what you don’t know. Even the best legal orator and the most brilliant analytical mind can trip up. Maybe he didn’t realize a statute required that certain evidence be presented. Or maybe he didn’t realize this court required he first take a parenting class or go to mediation before trial. This principle is especially true for pro se litigants. Being bright isn’t enough. You need to work hard and be willing to learn how to file your case, present your evidence and get your order signed. The resources below can help you, but it will not be easy.
Your “side of the story” may not see the light of day at trial
When representing family law clients and preparing them for the possibility of trial, I like to point out that trial is not like real life. You won’t be able to simply present your side of the story as if you are talking to the judge over a glass of lemonade. Testifying at trial is a unique experience, and can be difficult even for those that have an attorney. It’s difficult because you might not get your story across at all, or only in bits and pieces. The other party or his attorney can object to your testimony based on the rules of evidence, rules you might have no clue about. You may be surprised to learn that your “evidence” isn’t really evidence at all because it’s inadmissible. The other party can ask you yes or no questions; questions designed so you cannot explain your side of the story. As for getting the truth out of witnesses, you could have a hard time asking a question at all if it is not asked properly.
An attorney can help ease your mind by letting you know what evidence will be admissible and what won’t be. They can help you obtain admissible evidence, try to diminish unfavorable evidence, and highlight favorable evidence. And they can let you know what questions the other side could ask.
Your uncontested case might become contested
Many people represent themselves because they believe the other party will be amenable and will reach an agreement. While most cases don’t go to a final hearing (before a judge or jury) most also don’t settle very quickly either. Why? Think of it like this. In any given divorce or custody case, there could be well more than a dozen issues that you and the other party will have to agree on to reach a settlement. Issues could include child support and how much, many issues related to dividing and awarding property (assets and debts), a geographical restriction, alimony (rare but possibly contested), attorney’s fees, injunctions, a shack-up provision (sometimes called a morality clause), the child exchange location, who pays for travel expenses or other expenses for the child, and, of course, visitation. Sometimes, just one issue is precluding settlement. For instance, geographical restrictions are often contested. That is, should the custodial parent be restricted from moving beyond a certain area and, if so, how big is the area? Also, child support is often at issue. How should it be calculated? Are the child support guidelines appropriate, or should there even be child support under the circumstances?
Representing yourself without a lawyer
If you still want to try to represent yourself without a lawyer, here are some helpful resources:
Texas Law Help
Texaslawhelp.org is supported by the Texas Access to Justice Foundation. It is extremely helpful for people that want to represent themselves. The Site provides information and forms for several types of legal cases. These include family law cases like divorce, an original suit affecting the parent-child relationship (a custody case), a suit to modify the parent-child relationship, or an adoption. Even the Site admits that there is no substitute for legal advice. And it highly recommends you get an attorney in cases where:
- You are afraid for your or your children’s safety.
- Your case is contested.
- Your spouse has a lawyer.
- You or your spouse have a house, retirement, business, other valuable property or a lot of debt.
- You need spousal maintenance (alimony).
- You and your spouse have a child with a disability.
- You or your spouse have an ongoing bankruptcy or are planning to file for bankruptcy.
- You are in a same sex-marriage and you and your spouse have a child but there is no adoption or other court order stating that you are both legal parents.
As mentioned above, keep in mind that many cases are contested, even if only in part. But if you feel that your case will not be contested and your case doesn’t fall under any of the above categories, texaslawhelp.org could be invaluable.
The following site has some legal hotlines: https://www.sll.texas.gov/self-help/where-to-go-for-help/legal-hotlines/. I can’t vouch for them having not used them myself, but they are worth a look if you are representing yourself.
Schedule an Office Visit with an Attorney.
Sometimes attorneys are willing to set up an appointment and give legal advice even if you want to represent yourself. I do offer a free phone consultation. That said, many cases are too complex for me to provide much insight over the phone. For instance, I may need more time to discuss the facts of the case, or to look at prior court documents. That is why I offer a $100 office visit. You get an hour with me at my Tyler, Texas office and I can give you more well-informed advice. I’m willing to point you in the right direction if you want to represent yourself, or if you are on the fence about doing so, I can give you frank advice on that too.