“Pro se” means to act as one’s own lawyer. While there are rare cases where it may be cheaper, a pro se divorce is usually not recommended.
Why is it important to be able to attend by phone or video? As a Divorce and Family Law Attorney in Florida for over 25 years, this question has come up often. We have a large military population in our area and many of our clients have relocated to other parts of the country or the world. It can be very expensive and difficult for some of our clients to attend court in person. We will make every effort to accommodate our clients and fight for their ability to appear at Court by electronic communications including telephone, video, or otherwise. Generally, the parties and all witnesses must appear in court in person. This allows for the most comprehensive participation for the clients and it allows the judge a better opportunity to evaluate the attitude, demeanor, and credibility of the witness. It also allows the participant to have more free-flowing engagement with their attorney during the hearing or trial. However, it can be expensive and inconvenient creating a substantial financial burden. What is the Law now? Prior to September 28, 2011, there was Florida Rule of Judicial Administration, 2.530 (d) (1) that provided testimony be taken in person unless “all of the parties consent”. Therefore, unless the other party in the case agreed to allow you to attend the hearing by telephone or other electronic communication, then the court had no discretion, but would be required by law to deny your request. You would have been required to attend in person. With the change of the Judicial Administrative Rule, the Court is now permitted to allow participation over an objection if: “…a circuit court judge… may allow testimony to be taken through communication equipment if all parties consent or if permitted by another applicable rule or procedure.” In January, 2014 the Florida Rules of Civil Procedure, Rule 1.451 took effect and now allows a trial court to permit a witness to testify at a hearing or trial by contemporaneous audio or video communication equipment either by agreement of the parties, or “for good cause shown upon written request of a party upon reasonable notice to all other parties.” The rule was also adopted in 2015 and made applicable in the Florida Family Law Rules of Procedure with Rule 12.451. This question has been addressed by the Third District Court of Appeals for the State of Florida in the case of Edgar v. Firuta 165 So. 3d 758 (Fla. 3d DCA 2015), reversing the lower court denial of consideration to allow telephonic testimony of the Mother relying on Rule 1.451. The Appellate court noted that Rule 1.451 as amended took effect two months prior to the lower court’s ruling, and the court therefore did have discretion to consider telephonic appearance, and that the court was required to consider the mother’s motion and whether or not good cause exist. The Answer to our Question is.... To answer our original question of whether a witness may appear telephonically at trial even over the objection of the other party, the answer is Yes- if conditions are met and the Court grants an Order. The requesting party must make an appropriate motion/request to the court and set forth sufficient grounds or basis upon which the court can find good cause to permit the telephonic attendance. The request must contain the substance of the proposed testimony and an estimate of the length of the proposed testimony. In considering sufficient good cause, the court must consider and address in its order the reasons stated for testimony by telephone or video equipment, against the potential for prejudice to the objecting party.
Filing for a Temporary Restraining Order Often times people find themselves in situations where they are being harassed, stalked, abused, or otherwise in a situation where another individual is placing them in continuous physical or emotional harm. Recourse for an individual in this particular situation is to seek a Temporary Restraining Order ("TRO"). A TRO is commences by filing a Petition and Summons. Those must then be served onto to alleged perpetrator. It is important to note that when completing the initial forms to be as detailed oriented as possible. Often times people leave out important facts from the initial pleadings only to later bring them up in Court. Sometimes Judge's do not allow additional factors to be considered that were not previously alleged. Once Temporary Restraining Order is granted, and if it is granted, the Court will hold an Injunction hearing within 14 days of the same. That 14 day time period can be extended pursuant to Wis. Stat 813.125(3)(c), but requires written consent of both parties involved. During the granting of the Temporary Restraining Order and the Injunction hearing that is scheduled it is important to gather all applicable evidence and prepare for trial. Walking into an Injunction hearing unprepared places you at a disadvantage. Having competent counsel assist you with this process is very helpful as they can navigate a courtroom and advocate for the individual Injunction Hearing You have filed your Temporary Restraining Order and the Court has granted the same. The Court has scheduled your hearing/trial date. That hearing/trial date is what is called an Injunction Hearing. The Injunction hearing is your chance to put on evidence, call witnesses, and even testify yourself as to facts that support the basis for your Temporary Restraining Order and to ultimately determine if a Judge will agree with your case in chief and rule in your favor. The burden of proof for an Injunction Hearing is much lower than the typical criminal burden of proof. In a criminal case, the burden of proof is beyond a reasonable doubt. This means that the individual committed the alleged actions with 99.9999 certainty. In an Injunction hearing, you do not need to meet that burden. The burden for an Injunction hearing is called " reasonable grounds". Think of Reasonable grounds as more likely than not. In order words, if a Judge concludes that the evidence submitted translates to at least 50.00001% that the Respondent has engaged in the acts an Injunction may be entered. It is important to note that every county handles Injunction Hearings differently. Depending on the jurisdiction you may have 30 minutes or may be given 2 hours for your hearing. Therefore, you may be limited to what is called presentation by an offer of proof rather than presentation by witnesses, testimony, and evidence. Jurisdictions that proceed with offer of proof make it more difficult for a pro se litigant to argue their case. At a hearing where you are afforded to present exhibits, witnesses, and testimony it is crucial that you demonstrate to the Court the seriousness of the allegations presented and in a manner that makes sense. If you are scrambled in your delivery your case will be difficult for a Judge to follow. Furthermore, it is equally as important to understand the rules of evidence. If you walk into an Injunction hearing without counsel, and the opposing side has counsel, you could be in for a long day because an opposing attorney will know and understand the rules of evidence. This could translate to keeping evidence out, which could in turn be the ultimate factor for why you do not succeed in obtaining an Injunction. If you are successful at a trial an injunction will be granted for up to 4 years. It is important that you request this duration in your Petition as a Judge cannot grant any additional time that was not initially alleged. At the end of the day, navigating the Courtroom can be difficult. While a pro se (unrepresented) party can certainly file for a Temporary Restraining Order an proceed through the process by themselves, it is increasingly difficult to succeed at an Injunction hearing without counsel. It would be a good idea to at least seek out potential attorney's to assist with the same.
Where Can Common Law Marriages Be Created? Common law marriages can still be created in nine places: Colorado, Iowa, Kansas, Montana, Rhode Island, South Carolina, Texas, Oklahoma, and the District of Columbia. How are Colorado Common Law Marriages Established? In Colorado, common law marriages can be created at any time. There is no minimum amount of time that must pass before you can satisfy the common law marriage requirements. The requirements to form a Colorado common law marriage are: 1. That you co-habitate; 2. Mutually agree to be married; and 3. Hold yourselves out to be married. The agreement to be married does not have to be expressly made - or orally agreed to. Consent to be married can come from a variety of sources. Sharing bank accounts, filing taxes jointly, or signing an affidavit for health insurance through one spouse's employer are all examples of ways that you consent to be married. Both spouses must consent. Consent can be found where you have a reputation of being husband and wife or married. If friend and family members believe that you are married, then you have created a scenario where consent to be married can be found. If one spouse uses the other's last name as their own on documents, that can also be seen as consent. It is not necessary to have a ceremony to be common law married. Can Same-Sex Couples Be Common Law Married? Common law marriages are recognized between same-sex couples too. Colorado prohibited same-sex couple from marrying. However, the U.S. Supreme Court's decision in Obergefell v. Hodges, 576 U.S. ___, 135 S. Ct. 2584 (2015), which found such bans to violate equal protection, same-sex couples may marry the same as heterosexual couples. This decision applies to both traditional marriages and common law marriages. In 2018, Colorado decided to recognize same-sex common law marriages that pre-date the Obergefell case. This means that if a same-sex couple meets the criteria for a common law marriage, the court will treat the marriage as being valid, even if it was entered into before 2015, when same-sex marriages were legalized. Where are Common Law Marriages Recognized? Common Law marriages are valid in all 50 states. Common Law marriages are recognized as being valid in all 50 states because all 50 states recognize legally created marriages in other states. For example: you live in Colorado where you meet your significant other. You satisfy the elements of common law marriage in Colorado and then move to Wyoming where they have never allowed common law marriages to exist. You decide to separate from your significant other while you live in Wyoming. Wyoming must recognize your valid Colorado Common Law so long as your common law marriage satisfies the Colorado requirements. How Can I End a Common Law Marriage Common Law Marriages can only be dissolved by Divorce. Once a common law marriage comes about, it must follow the same divorce laws as a traditional marriage. The problem is that providing a common law marriage existed can be difficult since there isn't a wedding or marriage license that you can point to as the start of the marriage. Courts will look at things like financial history, living arrangements, notifying your employer of the relationship (including for the purpose of obtaining health benefits for a significant other), and when your community became aware that you were spouses. In the event that one spouse dies, the other spouse is permitted to receive the same benefits as a traditional spouse would. However, it is more difficult for a common law married spouse to prove that the marriage existed. It is important to speak with an attorney who is familiar with the elements and case law surrounding common law marriage, including the recent 2018 updates to common law marriages. Are There Any Defenses to Being Common Law Marriages? The only defense to being common law marriage is that the marriage was illegal when it was formed. Examples of it being illegal are that one spouse was still married to someone else or one spouse doesn't consent. Talk to an experienced attorney in your area if you believe that you may either be common law married or you need help defending against a common law marriage.
Backyard Advice You should not rely on what you've heard from friends about separation and divorce. Unless that friend is a licensed attorney, he/she is not authorized to practice law. Your friend's knowledge will be limited to his/her particular experience, that experience is limited to the facts of his/her case and the law as it was at the time. Things change. The law changes. Any change in the facts or in the law will change the outcome. Your friend lacks the knowledge and experience to give sound practical legal advice. Identifying Issues The sooner you consult a lawyer, the sooner you will learn what you need to know to protect yourself and your children and property interests. Sometimes people have o idea how to go about identifying the issues they need to discuss even if the separation is an amicable one and the parties anticipate a "friendly divorce." A good, experienced divorce lawyer can assist you in identifying the issues you need to discuss with your spouse to achieve a comprehensive agreement and global settlement. Over the years, there have been numerous times when we were able to point out to clients areas they had initially overlooked and issues which should be included in their settlement discussions, such as life insurance, health insurance, and children's educational needs. To Share or Not to Share? Do we need separate attorneys? Can't we just share? 40 years ago when I first began practicing law, it was strictly forbidden for a lawyer to represent both sides to a divorce, no matter how "friendly" it was. There are some limited circumstances in which dual representation might be allowed, provided there is full disclosure of potential conflicts of interest and a waiver of conflicts with informed consent by both parties. these situations are limited and in the event that unhappy differences or disputes should arise, the attorney must end the representation and both parties must seek new counsel. We rarely agree to dual representation; we represent our clients zealously within the bounds of the law and the conflicts in representing opposing sides are too apparent for us to agree to do so. If your spouse already has a lawyer, that means, he/she already knows is/her rights, duties and responsibilities under the law. In our experience, spouses will think nothing of misrepresenting the law to gain advantage in the negotiation. Recently a client told me that her husband who remains in the marital home told her that she was now his "landlord" and therefore she could not re-enter the home without his consent and presence and that his lawyer said so. Everything he told her was wrong. He also told her that they did not need to use lawyers and if she insisted on getting one, that he would find something wrong with each draft and run up her legal fees. She was glad she chose to get her own lawyer and advice, Do You Feel Lucky? Going to a court hearing in a pending divorce without a lawyer is like playing Russian Roulette. How lucky do you think you are? Would you preform surgery on yourself or would you seek out a qualified surgeon? Why do you think that you know enough to represent yours elf in court? Do you know what your rights, duties and responsibilities are? The judge won't help you out if you don't know what you are doing. There are rules of evidence and rules of procedure that govern hearings. You need someone on your team that that knows the rules of the game. You will need someone to prepare you for your testimony in court so that you don't put your feet in your mouth up to your hip bone. You will be bound by the things that come out of your mouth in court. Recently we spoke to a man who incurred spousal and child support obligations of $4300 per month. The court issued an order based on erroneous exhibits filed by his wife's attorney and based upon things he said in open court as to his income which were not accurate. A skilled trial attorney can get you to say things that you don't mean to say, especially if you have not been prepared for your testimony. Too Little, Too Late Going to see a lawyer after you have already signed papers or participated in depositions or hearings on your own is like closing the barn door, after the cow got out. Just because you were not represented does not mean that you can get out of a bad decision or bad deal you may have made or get out of rulings the court made when you were unrepresented. The time to get advice is before you sign, before you go to court. In fact, you should get advice as soon as you receive legal notice of a pending lawsuit against you. If you are reading this and you have already signed papers, you should still consult with a good experienced divorce attorney to have the papers explained to you and to see if there are any loopholes which may be used to renegotiate terms more favorably to you or to insist upon "clarification" of the agreement. The attorney can also explain the consequences of having signed the paperwork. If you are reading this and you are in the midst of a divorce, you should seek an immediate consultation with a experienced divorce attorney to see if there is any legal basis to suppress depositions that may have been taken or other steps that may be taken to protect your rights. Be sure to take all of your documents with you to the consultation. We have successfully reopened a case for a client because depositions were taken too early. In your case it may be too late to do anything, but you should at least talk to a divorce attorney right away to be sure. Isn't a Lawyer a Lawyer? (A Rose by Any Other Name...) You may know a lawyer who closed on your house. While you cold go back to that lawyer about your separation and divorce, it may not be in your interest to do so. There's a saying that if the blind lead the blind they both fall in a ditch. Would you go to a podiatrist (a foot doctor) about an eye infection? You could, both doctors went to medical school. The question is the question is how much, if anything does he/she remember about eyes? Is he/she current on the medical literature pertaining to eyes and eye disease? I have seen horrendous separation agreements prepared by lawyers who do not devote at least a significant portion of their practice to family law but were trying to accommodate a friend or relation in their time of need. Actually, a lawyer should decline a case, if he/she does not believe that he/she has the knowledge and experience to handle it or that he/she is not willing to acquire the knowledge necessary to handle it. It takes a significant amount of time to keep up with all of the changes in the law that affect separation and divorce. Think about it. Every week somewhere there is a court either federal or state making a decision that could affect your situation. Every week that the legislature is in session, whether Congress or the General Assembly, they make decisions that Could affect your situation. An experienced divorce attorney should make it a point to review new cases and statutes looking for those that affect family law practice. All of the best family lawyers do. Pre-Paid Legal If you have paid for this service, then certainly you can talk to one of the participating attorneys. But unless the attorney is an experienced divorce lawyer with a significate portion of his/her practice devoted to separation and divorce and related issues, you should give serious consideration to looking outside of your prepaid plan. Has the lawyer written any books or articles on separation, divorce or related issues that are published. I am not a participating attorney in a pre-paid legal plan. The best divorce lawyers are not To my knowledge there are no fellows (members of the American Academy of Matrimonial Lawyers) who participate in a pre-paid legal plan. If you are reading this and have personal knowledge of a fellow in the AAML and also a participant in a pre-paid legal plan, please let me know the name of the attorney so I can verify the information and update this guide. Think about what is at stake the custody and support of your children, the division of assets you may have worked your entire married life to accumulate, including your home, pension, savings, military retirement and/or 401k. Do you really want to cut corners when it comes to your kids? Your home? our pension? Your retirement? A Ship Needs a Navigator If you think of your legal case as a ship, the client is the captain of the ship and the client's attorney is the navigator. The navigator doesn't decide where to go, but he/she does map out the best course to arrive at the destination. Divorce is difficult even "friendly" divorces is not easy. It can be an emotional rollercoaster. You need emotional psychological and legal support. In choosing to separate and divorce, you will be faced with important decisions that will affect you, your spouse and your children not only now but I the foreseeable future. Passione an run hot during this difficult time and you need a clear head. You need a team of individuals including someone knowledgeable in separation and divorce law to help you see clearly and navigate the difficult and sometimes angry waters of separation an divorce. Not having a good divorce lawyer at the planning and separation state leaves your without the sound advice and rational third party perspective you need to make decisions which can bind you for life. Not having a good divorce lawyer at the divorce state leaves you without the knowledge, experience and advocacy of a good experienced divorce attorney. It leaves you at the mercy of your spouse and your spouse's attorney. Neither your spouse nor his/her attorney is there to show you mercy. You need someone to fight for you when you cannot fight for yourself. You need someone to hep you understand what is going on and how to act in the storm. You need someone who can help you be pro-active and not simply re-active to steps that your spouse takes. You want a team to support you, a team which can and should include your pastor, rabbi or spiritual advisor, your therapist or counselor, your CPA or tax adviser, your extended family ad friends, and a good experienced divorce attorney. You Need an Advocate You are going through a traumatic experience. Divorce is one of the most difficult experiences in life, second only to the death of a spouse. You need someone who understands what is at stake and will advocate for your interests with not only knowledge and experience but passion and feeling. When you interview attorneys, find out why they practice family law and what motivates them in advocating for clients. What is it that makes them passionate advocates? I recently spoke with another tiral attorney who does not generally handle divorce work. He usually handles criminal and traffic defense and civil suits for money damages. He told me that he was forced by the poor economy to take a contested divorce case. Divorce and family law are not his first choice of trial work. He is doing it now solely for the money. Is that the motivation you would want in your attorney? Or would you rather have a lawyer who has made a conscious decision to focus on family law and uses his/her life experience such as knowing what it is like to be a child of divorce, or having experienced separation and divorce, to relate to the circumstance of your case and to advocate for you with passion and conviction.
What is Limited Scope Representation? Limited scope representation is an unbundled or *a la carte* legal service. In a typical lawsuit, your attorney will handle all aspects of your case including but not limited to: drafting and filing all legal paperwork, attending all hearings, gathering all the evidence and negotiating with the other party or their lawyer. Under full service representation, the client typically gets billed at the attorney*s hourly rate. Under a limited scope arrangement, the lawyer only handles certain parts of your legal matter and you handle the other parts. For example, you might need a lawyer only to draft the settlement agreement, attend a hearing, or to just give you advise on how to examine your witnesses at trial. This can reduce your legal costs and save you money as you are only paying the lawyer to do certain specific tasks. Advantages The biggest advantage of limited scope representation is the cost savings. You are only paying the attorney for specific tasks that are too difficult for you to handle on your own. You retain control over your case, but still get legal guidance and assistance from a licensed attorney to help you navigate the complicated court procedures. This is preferable to a legal document preparation service staffed by individuals who are not authorized to give legal advice and may not be familiar with the local court procedures and requirements. Disadvantages The disadvantage is that once the lawyer has performed the specific tasks you retained them for, their representation of you is completed as their representation is not ongoing. If you require further assistance you will have to sign a new fee agreement with the lawyer on either a limited scope basis or a full-service basis. Once the lawyer has completed their task, you are responsible for the rest of the work on your case. Is it right for me? Whether limited scope representation is right for you depends on the complexity of your case on your comfort level with the court system. Some cases are too complex to be handled on a limited scope basis, but family law cases are particularly well-suited for limited scope representation. I*ve had many clients retain me on a limited scope just to draft pleadings that comport with Nebraska Law. Many people do not know that this type of legal service is available. If you think this may be the right option for you, or seek additional information, call an attorney and ask about it.
What Is Pro Se Divorce Mediation? The term pro se means *on one*s own behalf.* A person is pro se when he or she represents himself or herself. One process for dissolving a marriage is pro se divorce mediation. The parties hire a mediator to assist them in negotiating an agreement to dissolve their marriage, but they do not hire attorneys. The mediator may or may not also be an attorney, but the mediator will not and cannot represent the parties (or either of them) in court. For Whom Is It Appropriate? The parties do not have to file for divorce first in order to use the pro se mediation process. Similarly, parties who have already filed for divorce pro se may then seek the assistance of a mediator to help them work through unresolved issues. Mediating before actually filing the divorce case in court makes sense for some divorcing couples who are able to communicate with each other and the mediator. Mediation will significantly reduce the time and, in almost all cases, the cost of a divorce. Once the parties have signed a mediation agreement, they can file divorce papers in court as an uncontested divorce. How Does It Work? But couples interested in a pro se mediated divorce should realize that mediation is not necessarily easy or a process into which they should enter lightly. If the mediation succeeds, the parties will sign a mediation agreement establishing the terms of the resolution or settlement. This mediation agreement is an enforceable contract. The court may well hold the parties to their agreement even if they did not seek or have the advice of lawyers to explain the legal implications of the agreement. Although the mediator will assist the parties and will be able to provide legal information, the mediator*s role is not to provide legal advice. Unless the agreement the parties have made is so one-sided as to be unconscionable, the mediator will not advise either party against entering into the mediation agreement. The agreement is the agreement of the parties, not the mediator. For these reasons, it may be prudent to have a lawyer (not the mediator) review the agreement before the parties sign, to make sure they understand all the legal consequences. What Are the Rules? The parties to a mediated divorce must also abide by certain rules or guidelines. For example, if the divorcing couple has minor children, the couple will need to meet the child support guidelines or be able to explain to the judge why they have deviated from the guidelines. Some acceptable reasons for deviations from the guidelines are available from the court, and the mediator may provide this information to the parties. Mediators will also help the parties calculate the Alabama child support guidelines as part of their mediation services. Additionally, the mediated agreement will need to include a parenting plan with provisions for how much time children will spend with each parent. How Do We Select a Mediator? Once the divorcing spouses agree to mediate, the next step is to choose a mediator. The Alabama Center for Dispute Resolution (https://alabamaadr.org/) maintains a list of registered mediators in the state. Mediators are not required to place their names on this list, and some trained and qualified mediators may not appear there. Most state bars offer similar information. Selecting a registered mediator is nevertheless a good practice. The parties must of course agree on the selection. The public can use the list on the Center for Dispute Resolution*s website to see which mediators have completed approved courses in general, domestic relations, and domestic violence training; in fact, divorce mediators are trained and required to screen for domestic violence. Some mediators also have advanced training. Making sure that a mediator has met these requirements helps assure parties that the mediator is a trained professional who may be more effective and efficient, thus helping the parties complete their divorce without excessive fees and the costs of litigation. What Is the Next Step? The next step after selecting a mediator would be to contact the mediator to ask about fees, payment methods, and scheduling. Find out whether the mediator expects the parties to bring documents to the first session. Collect relevant documents, because at some point, possible in the second session, the mediator will need to review them as the mediation begins to focus on details. If you and your spouse own real estate together, you will need loan statements and unpaid tax and insurance bills. You will probably also need to collect tax returns for the previous three years. Share this information with your spouse. What Should We Bring? Most importantly, bring openness and willingness to compromise. In a later article, we will discuss the type of negotiation that is required for the successful outcome of a divorce mediation. For the present, though, realize that divorce mediation, whether pro se or otherwise, should create a mutually-beneficial agreement with two winners, not a winner and loser.
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