You Will Be Held to the Same Standard as an Attorney When Representing Yourself in a Divorce

By: Sarah McCain

In this day and age of on-line, check-the-box divorce forms, the general public is often left with the impression that handling a Colorado divorce case on their own is an easy process. Sometimes it can be, such as when the parties agree on each and every issue (though I recommend always consulting with an attorney to make sure the i’s are dotted and the tee’s are crossed). However, there are also instances in which people choose to represent themselves in contested Colorado divorce cases. In these instances, people often go into the courtroom believing that somehow the court is going to guide them through the process or that they will be given certain breaks or concessions because they don’t have an attorney. This is just not true. I have had many cases in which the other party chooses to go to trial without a lawyer. They are generally shocked to learn that the judge will hold them to the same standard as an attorney regarding procedure and rules of evidence.

When you file a divorce or custody case, or a modification, with the court, the paperwork that you receive from the Court (generally a Case Management Order) will often set forth deadlines and standards of practice. A party without an attorney may wonder what this means for him or her and may fail to grasp all of the deadlines that exist. Unfortunately, there is not an easy-to-read manual which lays out everything that needs to be done, and when. The Court does its best at advising parties to the extent allowed. However, in complicated financial or parenting time matters, the basic information given by the court may not be enough to formulate an understanding of what really is required or needed to effectively litigate.

Generally, at some point early in the process, the court will state that a party without an attorney will be held to the same standard as an attorney. Likewise, the case management order will often also contain this warning. The court does not give exceptions simply because you do not have attorney. Parties without a Colorado divorce attorney need to make sure that they are well aware of the deadlines that exist. For example, if you want to have any witnesses testify on your behalf you need to make sure that you declare these witnesses, in writing, in advance, and pursuant to the Colorado Rules of Civil Procedure, particularly if this witness is considered an expert. Unless you declare these witnesses properly, you will likely be precluded from having that witness you brought to court from ever making it to the witness stand. The same can be said for responding to petitions or motions, issuing a subpoena, and participating in other aspects of trial preparation. The mandatory deadlines need to be known and followed. If you are unsure of procedures and deadlines you face, it’s important to meet with an attorney to discuss the issues in your case and how best to prepare for your hearing. With so much on the line, whether related to your kids or a significant financial issue, it’s vital to understand that one wrong move, or blown deadline, can make or break your case. Failure to follow rules can lead to an inability to present your case as needed, meaning a judge may refuse to consider crucial evidence or documents, regardless of how relevant they might be.

When it comes to your actual court hearing, the court has procedures and standards that it follows and judges expect parties, even individuals without attorneys, to follow those same rules. You will be expected to present your witnesses in an appropriate manner, cross examine the other party’s witnesses, and present your exhibits in the same manner as an attorney. Presenting your own testimony is also often a challenge for many parties. You are not allowed to just read off notes or from a prepared statement. This raises a dilemma for many parties who are unsure of what to say, how to say it, etc. Though an attorney will take the time to develop testimony and write out questions for each witness, or their own client, the party acting as his or her own attorney often gets to the stand completely unaware of what he or she should say, or can say. Often times they will delve into hearsay statements or just presume what ever is on their mind is admissible to evidence. Another significant issue which arises at Denver divorce or custody hearings in which one party is self represented relates to documents, or exhibits, that party wishes to show the court. People often assume they can just bring items to court and the judge will automatically look at and consider them. Contrary to those assumptions, the person without an attorney must have followed rules regarding exhibit disclosures, bringing enough copies, and admissibility, the same as an attorney would. Even if you are intending to go conduct your hearing on your own, you may want to consider taking the time to meet with a professional to discuss trial preparation, or perhaps to even assist with preparation of your documents and provide instruction.

There are many old saying, such as “a person acting as his or her own attorney has a fool for a client.” I am not suggesting that every person without an attorney is a fool and I do believe there are many intelligent, capable people who can learn procedure and take a valiant shot at representing themselves. However, in the end, they will usually still make mistakes or miss something based on a lack of understanding of court procedures and standards. I wouldn’t give myself a root canal or expect to be able to repair my own computer, regardless of how many books I read on the subject. The practice of Colorado family law is complex and full of nuances, which matter. Likewise procedures can vary from court to court. Procedures in a Broomfield divorce may not be exactly the same as those in Douglas County. These court subjective nuances are something most attorneys are familiar with, whereas the general public may not be. If you do plan on litigating your own divorce and custody case, just remember the court will treat you as it would the attorney sitting at the other table with your spouse or the other parent of your child.