The Five Biggest Mistakes People Make in Divorce Without an Attorney
In Arizona, many people choose to represent themselves in their divorce without an attorney. Some by choice, but most represent themselves because of financial constraints. Hiring an attorney can be a big investment—and it doesn’t come with any guarantees. But one thing you can be assured of is that an attorney is going to know the rules and procedures of the Court and how to put on a case better than a self-represented person. Here are five biggest mistakes unrepresented people make in divorce that lead to bad outcomes:
1. Not disclosing, preparing, or admitting exhibits
Exhibits are the evidence you use to explain, support, and win your case. If exhibits are not ‘admitted’ into evidence at TrialA court hearing in which evidence and testimony are taken, and the Court makes a final determination of the issues raised in a petition. Trials and evidentiary hearings are somewhat synonymous, but the difference is one of scope: Evidentiary hearings are more limited in scope…Read more about Trial, the judge is not allowed consider that information when making a ruling in your case. There are strict rules when using evidence, and many pro pers fail to give the Court the opportunity to even consider their evidence because they don’t follow the proper rules to get the information admitted. At a minimum, you must do three things to have your evidence considered: (1) you must disclose, or provide it, to the opposing PartyAn individual, entity, or the state that either brings the lawsuit or is required to respond to the lawsuit. See ARFLP Rule 3(f).Read more about Party/counsel ahead of the deadline as outlined by the judge, (2) you must properly assemble the exhibits and submit them to the Court a week prior to trial, and (3) at TrialA court hearing in which evidence and testimony are taken, and the Court makes a final determination of the issues raised in a petition. Trials and evidentiary hearings are somewhat synonymous, but the difference is one of scope: Evidentiary hearings are more limited in scope…Read more about Trial, you must properly move to admit each ExhibitFor a hearing or trial, an exhibit is documentation introduced to the Court to be used as evidence for Trial. Exhibits can also be attachments to motions, pleadings, letters, etc. in support of the document.Read more about Exhibit into evidence. These requirements have a purpose: If an exhibit has not been disclosed to the other side, it should not be admitted for the Court to consider. If it’s not in the Courtroom, then it cannot be given to the judge.
DisclosureFollowing Rule 49, this is when you provide documents, evidence, and information regarding your case to the other side. Any evidence you want to use must be disclosed to the other side. Disclosure is not filed with the court.Read more about Disclosure is a very specific procedure outlined in the Arizona Rules of Family Law Procedure (ARFLP). Every family law litigant should read Rule 49 of ARFLP to know what documents they are required to disclose. You may also disclose anything else you believe is RelevantAs defined by Black’s Law Dictionary, “Logically connected and tending to prove or disprove a matter in issue; having appreciable probative value — that is, rationally tending to persuade people of the probability or possibility of some alleged fact.” (Black’s 11th ed., 2019).…Read more about Relevant and want the judge to consider. Generally, sixty days before, you must also disclose any witnesses you plan on calling and a short statement regarding the purpose of their TestimonyThe sworn statements of a witness made at a trial or deposition.Read more about Testimony. In preparing exhibits, you should reference the Minute EntryThese are documents issued by the Court as part of the official court record. A Minute Entry can serve many purposes including ruling on motions or trials, summarizing the record from a hearing, setting forth orders of the court, clarifying a prior ruling, appointing an expert to…Read more about Minute Entry or Order to AppearThis is a Court order directing a party to appear at a Court hearing or other court-ordered event or to face the penalties listed within the order.Read more about Order to Appear for the specific hearing and follow the instructions to a tee. To admit the ExhibitFor a hearing or trial, an exhibit is documentation introduced to the Court to be used as evidence for Trial. Exhibits can also be attachments to motions, pleadings, letters, etc. in support of the document.Read more about Exhibit at trial, you must identify its exhibit number, describe what the exhibit is, and ask the Court to admit. Opposing party/counsel will be given a chance to object. Only once the judge has announced your exhibit has been admitted can you be assured your exhibit will be considered.
2. Not getting the information they need
Related to not disclosing the information a Pro pershortened form of in propria persona, a Latin phrase for one who represents themselves in court.Read more about Pro per needs to use at trial is not getting in the first place. This is particularly true when the information they need is currently in the hands of either the other PartyAn individual, entity, or the state that either brings the lawsuit or is required to respond to the lawsuit. See ARFLP Rule 3(f).Read more about Party or a third party. The Court system has created multiple tools for litigants to get the information they need to put on their case. These tools are called “DiscoveryGoverned by Rules 51 to 65 of the Arizona Rules of Family Law Procedure, this is the formal process of acquiring information that you need to put on your case. This includes options like interrogatories (written questions), depositions, subpoenas, and Requests for Productions.…Read more about Discovery,” and include options such as formal InterrogatoriesThis is a discovery tool where one party sends the other party questions for that party to answer under oath. There is generally a 40-day deadline for the responding party to answer and return their answers to interrogatories. See ARFLP Rule 60.Read more about Interrogatories, requests for production, requests for admission, subpoenas, and depositions. The Arizona Rules of Family Law Procedure that permit these tools can be difficult and tough to navigate. As a result, pro pers either do not know these options exist or do not know how to use them.
As an example, we once talked to a woman who was representing herself without an attorney in a divorce. She suspected her husband was not being truthful to her about his assets, including his stake in a business. She did not have any of the documents she needed to show his true worth and as a result, she risked missing out on around $200,000.00. Fortunately, we were able to help her by issuing formal discovery and she gained access to the supporting information to put on her case at a trial and get the money she was owed.
3. Fighting the wrong battles
Trial time is limited and heavily regulated. The average case gets set for a three-hour trial, and when accounting for breaks, and the judge speaking, that leaves the parties about 80 minutes each. But when both parties are unrepresented, Courts set even shorter trials, and each side may have as little as 30 minutes to put on their case and cross examine the other side. We often talk to pro pers who want to exhaust whatever time they have into proving something that won’t help their case. They want to use their trial time to prove the other party committed perjury or that one of the court-appointed professionals was biased or self-interested. But that’s not the issue the Court must decide. Your time is better spent providing the Court with the information it needs to rule on the specific current issues.
4. Not telling their story at trial.
As mentioned above, you only get so much time at trial. Many pro pers (and some attorneys) WasteAnother, more informal term for community waste. Waste occurs when community funds are spent on things that don't benefit the community, such as an affair.Read more about Waste this time cross-examining the other party or calling witnesses. But you are your own star witness. Your time is usually best spent with you on the stand, telling the judge your story. The bulk of your allotted time should be spent on your testimony. Certainly, you should budget time to cross-examine, or ask questions, to the other party or witnesses. Generally, five or ten minutes is sufficient. If you want someone to testify on your behalf by calling them as a witness, you need to budget that time in as well.
5. Being unwilling to discuss settlement.
We repeatedly see initial court hearings where the judge tries to get the parties to either settle or go to some sort of SettlementAn agreement by parties in a lawsuit to resolve the case without going to trial. This can be resolving all the issues or just a few of the issues. The issues resolved should be reduced into a written agreement that both parties sign and then submit to the Court for approval. This…Read more about Settlement meeting, such as a MediationA common settlement method where the parties use a mediator, a neutral third party, to negotiate a settlement. Family law mediations usually involve the mediator meeting separately with each party and their attorneys. Mediation is often highly effective.Read more about Mediation, only to have a pro per inform the judge, “Your honor, I’d rather have you decide than try and settle.” You can see the Pro pershortened form of in propria persona, a Latin phrase for one who represents themselves in court.Read more about Pro per thought this was a good strategy, as though they were validating their trust in the judge’s wisdom. In reality, they just gave the wrong AnswerAn Answer is also known as a Response to a Petition; it sets forth the Respondent’s issues on a Petition.Read more about Answer. Judges want parties to try to settle their disputes outside of the Courtroom; more importantly, the Rules require parties attempt settlement. This is not to say you must settle—only that you must attempt to agree. Refusing to discuss SettlementAn agreement by parties in a lawsuit to resolve the case without going to trial. This can be resolving all the issues or just a few of the issues. The issues resolved should be reduced into a written agreement that both parties sign and then submit to the Court for approval. This…Read more about Settlement is not a wise move, and if the other party is represented, it puts you at serious risk of being ordered to pay their attorney’s fees.
Be aware all deadlines mentioned here may be changed by your judge. It is important to read every Minute Entry from the Court carefully and note all deadlines and procedures.
