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Untying the knot yourself

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Indiana Lawyer Focus

When couples decide to divorce, they don’t always call their lawyers.

Instead, just like a home repair or remodeling project, many couples opt for a do-it-yourself divorce because either they cannot afford legal counsel or they believe they have the ability to reach an agreement on their own.

However, as attorneys point out, these pro se litigants often do not know enough about the law to identify all the issues that must be addressed when untying the knot. And once the divorce decree is signed, no matter how unfair or inequitable, the parties will likely have little recourse in the courts and could get stuck with what one lawyer described as “spectacular mistakes.”

valer Van Valer

Anecdotal evidence indicates the number of pro se divorces is rising. Attorneys are noticing and hearing about more couples maneuvering the legal process themselves. The 2012 Judicial Service Report, compiled by the Indiana Supreme Court Division of State Court Administration, recorded 15,000 pro se domestic relation proceedings, which include petitions for dissolution, legal separation and to establish child support.

John Sage, staff attorney at Indianapolis Legal Aid Society Inc., represents spouses who do not have the resources to afford legal assistance. They arrive at his office with the forms that have been downloaded from the Indiana judiciary’s self-service legal center.

Sage’s clients often seek help because they cannot understand the instructions accompanying the forms. Sage said the directions are not complicated for someone with an adequate high school education, but he sees clients

who are not “sufficiently competent” and get tripped up on things like knowing to put their name in the box marked “petitioner.”

“It’s frustrating because a lot of these people shouldn’t be doing their own forms,” Sage said. “People will hurt themselves with these (pro se divorces).”

kohlhaas-michael-mug.jpg Kohlhaas

The biggest consequence is one party not getting something to which he or she is entitled.

Sage recounted the story of one woman who became disabled during her 15-year marriage. She and her husband had done their own divorce but they never discussed disability maintenance so, although the woman could have gotten something equitable to alimony, she had nothing.

Couples can also get themselves into trouble by not being honest with the court.

Franklin attorney and registered mediator Kim Van Valer recalled getting a phone call from a woman seeking post-divorce advice. Even though they had a child, the husband had convinced the woman he would pay child support and health care coverage so they did not need to involve the courts in that matter. The couple ended up using the pro se form for divorce with no children.

The woman contacted Van Valer because the husband had reneged on his part of the agreement. Van Valer told the woman she had a more serious problem of perjury since she had signed documents telling the court she had no children. To try to get a remedy, the woman would have to expose her lie to the judge.

“This is legal practice and there is a reason lawyers do this and have to learn how to do it,” Sage said, explaining attorneys have the knowledge and experience to realize where the problems are and what questions to ask.

Yet, despite the messes that can be created, many attorneys were reluctant to advocate banning pro se divorce altogether.

gooden Gooden

“I don’t know that that’s even feasible and it sounds a little self-serving and heavy handed, telling people they’re not allowed to get a divorce unless they hire an attorney,” said Michael Kohlhaas, partner at Bingham Greenebaum Doll LLP in Indianapolis.

Alicia Gooden, Indianapolis attorney and domestic mediator at The Mediation Group, said she struggled with determining what more the legal community should be doing to help, but she did not want to make a blanket statement that all pro se divorces were good or bad.

More troubling to her are the individuals who believe they will be better off without legal representation. These people hold the view that attorneys are only interested in money and not the client. Gooden pointed out the attitude that lawyers only have their best interests in mind is contrary to the good attorneys she knows who are ethical and act with integrity.

Kohlhaas encounters such an attitude in his practice. He has been in situations where he is representing one spouse against the other spouse who has decided not to hire legal counsel. The pro se litigant may believe he or she can save money by not enlisting an attorney or is smart enough to figure out all that needs to be done.

In that situation, Kohlhaas said he will use email, rather than the phone, to communicate with the pro se party so there is a record of the conversation. Also, he will continually remind the spouse who is going it alone that he is only representing the other spouse and will constantly encourage the do-it-yourself litigant to get an attorney.

Then, if an agreement is reached, Kohlhaas includes a big, bold block of print above the signature line that, again, states who he is representing and that he has told the unrepresented party many times to retain an attorney.

Not every couple who decides to divorce pro se does it completely without assistance. Sometimes husbands and wives will work with a professional mediator to reach an agreement over division of property and child support.

As in the courts, pro se parties in mediation can make the process less efficient. The mediators have to work harder, asking questions that expose areas of disagreement, and they have to refrain from giving advice or making recommendations no matter how many times the clients ask for help.

Gooden and Van Valer attorneys have seen couples purposefully not hire attorneys because they fear with legal representation the process will become too acrimonious. In other instances, the couples want to keep costs down in order to have more money for their children.

Parties that are successful in reaching an agreement in an amicable fashion will more likely be able to co-parent harmoniously rather than fighting about every issue.

“If they don’t have anything they need to argue about and they do agree, it’s much cheaper to do it with mediation without an attorney,” Van Valer said. “Ultimately, someday I’d like to see people come to mediation first.”

However, a mediator in the room does not guarantee the couple will put together an equitable agreement. People going through a divorce are often in heightened emotional states and just want to get the process over with.

This raises the possibility that issues will be forgotten or not fully worked out, and modifying them may be even more difficult. Once the parties are divorced, they do not have to take their ex-spouse’s feelings into account and tensions can rise.

Sue Ann Hartig, attorney and retired director of the Legal Aid Society of Evansville, said in 1979, a final divorce decree was a page long. Now, with the required language, parenting time guidelines, child support calculator and exemptions, divorce has become more complicated and also more expensive – the two things that can really hurt pro se litigants.

“We’re definitely going to continue to have pro se litigants,” Hartig said, “and I think somehow our system will have to address that.”•

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  • shysters?
    Article says: "More troubling to her are the individuals who believe they will be better off without legal representation. These people hold the view that attorneys are only interested in money and not the client." Earlier generations of Americans had a spiritual focus, which is necessary to maintain a consistent moral resolve. Once all became focused upon materialism, the ethics became merely a matter of what the law allows one to get away with. No profession has suffered more from this emphasis upon money than the law, since many now view lawyers merely as opportunists seeking to maximize profits on someone else's pain. Time to pay heed to the following lest the hour grow too late for renewal:"we have no government, armed with power, capable of contending with human passions, unbridled by morality and religion. Avarice, ambition, revenge and licentiousness would break the strongest cords of our Constitution, as a whale goes through a net. Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other." John Adams. We are quickly approaching a tipping point in which this nation becomes ungovernable (except via despotism) due to the universal dedication to avarice, greed and materialism. The masses are observing this and shying away from shysters for that reason.
  • Legal Solution !!
    Modern day phenomena should be handled in the most "CREATIVE" ways:See I.C.34-57-5-1 et seq IN.Legislature has provided for these already

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  1. Applause, applause, applause ..... but, is this duty to serve the constitutional order not much more incumbent upon the State, whose only aim is to be pure and unadulterated justice, than defense counsel, who is also charged with gaining a result for a client? I agree both are responsible, but it seems to me that the government attorneys bear a burden much heavier than defense counsel .... "“I note, much as we did in Mechling v. State, 16 N.E.3d 1015 (Ind. Ct. App. 2014), trans. denied, that the attorneys representing the State and the defendant are both officers of the court and have a responsibility to correct any obvious errors at the time they are committed."

  2. Do I have to hire an attorney to get co-guardianship of my brother? My father has guardianship and my older sister was his co-guardian until this Dec 2014 when she passed and my father was me to go on as the co-guardian, but funds are limit and we need to get this process taken care of quickly as our fathers health isn't the greatest. So please advise me if there is anyway to do this our self or if it requires a lawyer? Thank you

  3. I have been on this program while on parole from 2011-2013. No person should be forced mentally to share private details of their personal life with total strangers. Also giving permission for a mental therapist to report to your parole agent that your not participating in group therapy because you don't have the financial mean to be in the group therapy. I was personally singled out and sent back three times for not having money and also sent back within the six month when you aren't to be sent according to state law. I will work to het this INSOMM's removed from this state. I also had twelve or thirteen parole agents with a fifteen month period. Thanks for your time.

  4. Our nation produces very few jurists of the caliber of Justice DOUGLAS and his peers these days. Here is that great civil libertarian, who recognized government as both a blessing and, when corrupted by ideological interests, a curse: "Once the investigator has only the conscience of government as a guide, the conscience can become ‘ravenous,’ as Cromwell, bent on destroying Thomas More, said in Bolt, A Man For All Seasons (1960), p. 120. The First Amendment mirrors many episodes where men, harried and harassed by government, sought refuge in their conscience, as these lines of Thomas More show: ‘MORE: And when we stand before God, and you are sent to Paradise for doing according to your conscience, *575 and I am damned for not doing according to mine, will you come with me, for fellowship? ‘CRANMER: So those of us whose names are there are damned, Sir Thomas? ‘MORE: I don't know, Your Grace. I have no window to look into another man's conscience. I condemn no one. ‘CRANMER: Then the matter is capable of question? ‘MORE: Certainly. ‘CRANMER: But that you owe obedience to your King is not capable of question. So weigh a doubt against a certainty—and sign. ‘MORE: Some men think the Earth is round, others think it flat; it is a matter capable of question. But if it is flat, will the King's command make it round? And if it is round, will the King's command flatten it? No, I will not sign.’ Id., pp. 132—133. DOUGLAS THEN WROTE: Where government is the Big Brother,11 privacy gives way to surveillance. **909 But our commitment is otherwise. *576 By the First Amendment we have staked our security on freedom to promote a multiplicity of ideas, to associate at will with kindred spirits, and to defy governmental intrusion into these precincts" Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539, 574-76, 83 S. Ct. 889, 908-09, 9 L. Ed. 2d 929 (1963) Mr. Justice DOUGLAS, concurring. I write: Happy Memorial Day to all -- God please bless our fallen who lived and died to preserve constitutional governance in our wonderful series of Republics. And God open the eyes of those government officials who denounce the constitutions of these Republics by arbitrary actions arising out capricious motives.

  5. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

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