One of the topics us divorce lawyers discuss amongst ourselves is how it can sometimes be more difficult when the adversary is “Pro Se” rather than represented by counsel. Pro Se is just a fancy lawyer way of saying “without an attorney.”
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 either 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. If unrepresented, it is important that your spouse expressly waives their right to an attorney and that this waiver be referenced in any Marital Settlement Agreement. No attorney can represent both parties ethically in a New Jersey divorce.
My Ex Won’t Hire an Attorney
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. That individual might feel at such a negotiation disadvantage that they will attempt to stall any agreement.
Finally, self-representation may increase the risk of negative emotion impacting the divorce. 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.
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.
It is generally better when both sides have an attorney. It creates a more level playing field, and helps protect any Settlement Agreement. That said, as with much of the law, we can only control what we can control.
Partner with Carl Taylor, Esq.
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