This past Saturday I attended the annual New Jersey Family Law Symposium. It’s a really great event where New Jersey family law practitioners meet to catch up on the latest developments in the law and to network with one another. One of the topics I discussed with a couple of fellow practitioners I am friends with is how it can sometimes be more difficult when the adversary is “Pro Se” rather than represented by counsel.
One question that often gets asked during initial consultations is whether a parties’ spouse is required to retain an attorney. The answer is that there is no requirement that a party be represented. There will be cases where one party has an attorney but the other does not. There will also be many cases where both parties will be represented or neither party will have counsel. It is important that your spouse expressly waives their right to an attorney and that this waiver be referenced in any Marital Settlement Agreement.
Some of the challenges one faces when the adversary declines legal representation is that they may have less incentive to finalize an Agreement because they are not paying for counsel fees. Also, the adversary may be unreasonable because they do not understand the law. Finally, that individual might feel at such a negotiation disadvantage that they will attempt to stall any agreement. Finally, another issue that might come into play is emotion. Many attorneys will not represent themselves in a divorce because they feel they would be too emotional—too involved in the case to be able to take a dispassionate view of the proper legal recourse. This too case be an issue when a party is Pro Se.
It is important to remember that every case is different (just as every person and every litigant is different), so that should be kept in mind when confronting such a situation.
When there are limited funds, it can be difficult to afford counsel and it is increasingly difficult for individuals to obtain Pro Bono counsel for family law matters such as divorces. This too leads to an increase in Pro Se litigants. Unlike in many criminal cases, almost without exception there is no legal right to an attorney in family law matters.
Every case will have its difficulties and there is no reason to stress if your spouse refuses to hire an attorney. While it may cost you more money than what the Pro Se litigant will pay, you will likely (hopefully) have the benefit of the attorney’s experience on your side.