FULL TRANSCRIPT

Welcome to another episode of the exEXPERTS’ Divorce etc… podcast, where we give you all kinds of information and tips on everything divorce. Why? We’ve lived it, so we get it. We’re Jessica and T.H. And keep in mind you can get exEXPERTS in your inbox by signing up for our newsletter. Get the latest news and find out all about our events before anyone else, plus, access to special discounts and prices. Head to exEXPERTS.com to subscribe.

T.H.: Welcome, everybody. On today’s podcast, we have an exEXPERTS friend, Sandra Fava, from Fox Rothschild LLP. She’s a family law attorney here in New Jersey. Today, we are going to talk about defending yourself in court, the pros and cons of it, red flags, and things you definitely need to know as you go on this journey. Sandra is going to take us through that. Welcome to our show today.

Sandra: Hi, guys, thanks for having me. It’s always a pleasure to be talking with the exEXPERTS for sure.

Jessica: Thank you so much for being here. We’ve also done a bunch of episodes with Sandra through the Believe, Inspire, Grow community. If you aren’t following B.I.G also on social media, you definitely should be because Sandra hosts basically a virtual workshop every month on all different types of divorce topics. You’ll get a lot of information from her through that resource as well, so we highly recommend it.

T.H.: Let’s talk about this. I have a few friends who have defended themselves through their divorce. That’s in air quotes because it’s not been done well because some are still defending themselves 10 and 13 years later. They went into it because they felt that they didn’t have the funds to hire a lawyer. But in the end, the emotional scars and trauma of doing this, as well as the money spent anyway, ends up being pretty significant. Let’s dig into this. I’m not really sure where to even begin.

Jessica: Well, I want to begin with, not in a judgmental way, but I mean, I know you’re a lawyer obviously, Sandra, so you’re coming from a specific place, but just in general, if there are people out there who think that they can’t afford legal representation for a divorce, do you generally think it’s a good idea or not to try to defend yourself?

Sandra: I think it’s a very specific question and it depends on what kind of divorce you’re going through. Right, if you have a very amicable – we don’t have a lot of stuff, everybody knows what each other has, there’s no secret hidden offshore bank accounts that anybody’s worried about, we’ve agreed on what we’re going to do with our children, and we’re putting it together, then yes, I think that that is certainly a possibility. I think that anything that becomes slightly more nuanced or complicated from that point is a tricky question to answer, and it depends on a lot of different factors. Here in New Jersey, I think you have to look at where or what county you are in. There are resources that are available to give you divorce assistance that’s not through the internet, but that are organizations and nonprofits that can help even with basic pleadings or understanding the process. There’s information out there that’s reliable and at no cost or is charged to people on a scale of their income. So what they have available to them, it’s a percentage of that.

T.H.: What’s an example in New Jersey? Do you know the name?

Sandra: Yep. In New Jersey, there is the Rachel Coalition is one of them. I believe that’s out of Essex County. There’s another called Partners for Women and Justice that is definitely out of Essex County. In Montclair, I’ve spent a lot of years volunteering. They hold free consultations with various attorneys throughout the state that volunteer their time on Saturdays so if you can’t do it during the week because of childcare, right? Then they also have staff attorneys that again, they’ll take on a matter just again, on a sliding scale, depending on what your income is or what you have available to you. They’ve represented some people who from the outside may seem like they have a middle or upper-middle-class lifestyle, but that specific client may have zero access to funds, that they might be a victim of some of that financial abuse we’ve talked about before. They provide services like that. There is also a place in Livingston, New Jersey on Route 10 that is on my firm bio, and of course because I need to remember it…it’s the Jewish Center for Women, and they do the same thing where they get–I’ll find the name in a second, but it’s the same concept where you can go in during the week in the evenings, attorneys volunteer their time to consult with you to get a free consultation. Then sometimes they will either partly fund your representation or they’ll give you a stipend. They have grants that you can apply for, things like that.

T.H.: So what would someone type in to look for that? You’re on your computer, and you’re on Google, what do you type in to find these services? Like, free divorce services? Or is it–

Sandra: Yeah, I mean, you could try that. I’ve never actually Googled it. Let’s see what comes up. I’m thinking maybe pro bono divorce services.

Jessica: While you’re Googling that, T.H. made me watch this documentary recently called Divorce Corp, which was all–okay, so you’ve seen it?

Sandra: I have.

Jessica: Okay, so as you know then, by the way, anyone listening, it’s very unsettling and disturbing and upsetting to watch, but it’s very informative. It really talks about the business side of divorce in this country. It’s unfortunate how much bribery is going on behind the scenes. But it definitely came across in that documentary that the women, because it was mostly women, who had tried to defend themselves in their divorces, were almost being targeted and punished in a way by the judges in their cases. The judges were unforgiving that these women didn’t have a legal background and didn’t understand necessarily the concept of certain motions or of documents that they should have available to them. It was as if they were being unfairly punished for the fact that they were defending themselves. That to me was why I thought, I mean, I think I’m better off with a lawyer, but I feel like after watching that, that would have been to me the answer as to why I wouldn’t want someone I knew to risk representing themselves unless they were a lawyer because the legal code for divorce in so many states–

T.H.: You couldn’t even navigate it.

Jessica: Yeah, it’s thousands of pages long, and the judges were so unhelpful.

Sandra: Yes. So I also watched the documentary and some of it was not surprising. We’ve got offices across the country and so we’ve had conferences with colleagues in our Texas office and down in Florida, and I’ve heard a lot of the same stories from those types of states. I am being 100% honest that in my career, in my experiences in a courtroom, I have not seen that. I have seen men and women equally treated, either with compassion and kindness as self-represented people, or equally as tough. I have to say that throughout my career. I think one of the things that is a red flag is if you’re representing yourself, and you’re appearing in front of a judge, and a judge has said to you more than once, Mrs. Smith, you should really think about getting a lawyer. I would really encourage you to consult with an attorney. That is the most the judge can do to basically jump up and down and say, hey, you need help here. You’re not doing well. I’m not blaming you for it, but I can’t give you the answers because I am supposed to be neutral and impartial. I have seen that. I have seen that happen many times in a courtroom, where I’m waiting my turn, and there are self-represented people where judges have repeatedly said to both men and women, I strongly recommend that you have counsel. Have you looked for counsel? Have you considered counsel in this situation?

Jessica: Do you think that judges are extra frustrated when they have a couple that comes in and one person is not represented? Is it they’re like, look, in their heads, maybe we only have so much time here. If you aren’t being represented by someone, you’re just going to take us down into the weeds into a rabbit hole of places we don’t need to be. Do they get angry if someone isn’t represented by legal, by a lawyer?

Sandra: I mean, again, I haven’t seen that without warrant, I would say in fairness. But I think that as humans, I think that if you’re doing this–listen, you have to remember that in New Jersey when you are appointed to the bench, you are not appointed because you have experience in a certain area of law. Oftentimes, our new judges are placed into family court where oftentimes they have zero experience in family court matters, so they are learning as they go. They get training and they have a mentor within their county, but it’s a very busy docket throughout the state. And when you have a self-represented person in front of you, and they are being difficult, I think human nature, I mean, I’ve sat in the gallery thinking, oh, my god, this person is just killing themselves–

T.H.: It’s a train wreck.

Sandra: It’s often painful to watch. Sometimes there is also, I think, a bias that people who are self-represented, especially when you have very difficult cases, they maybe have a touch of a mental health issue going on because that’s the first thing that I think the other side will throw out there to see if it sticks on the wall, right? You as a self-represented person may say something wrong or may put something in your papers because you don’t know any better. I have seen people capitalize on that and say, this is what I mean, he or she is crazy. Here’s an example of them being–and so then that’s out there floating around in the universe. How do you take that back? If you jump up and down and say you’re not crazy, there are times when you look like a crazy person. So I think it’s really a hard rope to walk. Unless you really have a simple case, or you have some sort of–I’ve had people consult with me who say, listen, my sister’s going to be on the call, she practices family law in Virginia. Or I have a best friend who does corporate law who can kind of help me do some of these things, but I have a specific list of questions. Okay, maybe you’re in a better situation than other people, but I think that what sometimes is forgotten is the amount of work it takes to move through a case. I know that it’s frustrating and it’s expensive, but if you’re working with a legitimate, credible attorney, some of that is because it has to be that way. There is certain work that has to be done for us to give you answers that are based in some form of reality and not just made up, or what we think you want to hear, or just to help the case move along quicker.

Jessica: Sandra, what would you say would be the two or three most important things that someone would need to know if they wanted to defend themselves? Two or three most important either documents or motions or…I don’t even know all the terminology, but they need to have ready down pat in order to try to be successful in that journey?  

Sandra: Sure. I think the easiest one is knowing where the paperwork exists, knowing how to navigate the New Jersey Courts or your state court website. There’s a lot of information on there. You have to know how to find it. I think that experience of being able to do that yourself is much better than going into a courthouse and dealing with a state employee who’s frustrated. They often give out the wrong paperwork to people because people are having a hard time explaining what they’re looking for. So if you have the ability, if you’re thinking about doing this, there’s going to be work on your end. Part of that is getting familiar with the website because not only are the forms there but there is an explanation actually of when or why you would use the forms. I can only speak specifically to New Jersey. I know there’s been a lot of time and effort put into the online materials that are there. Then to second that, I think that again, doing your homework generally, like, how do I get divorced? What are the grounds? What documents do I need? We’ve talked about in B.I.G having your tax returns and financial information ready or knowing where to look for it, and being able to access online accounts so that you can complete information properly and thoroughly. You can’t take shortcuts when you’re representing yourself and use the self-representation excuse as the reason for the shortcut. Because there is an expectation that if you’re here, and you’re going to do this on your own, there’s not necessarily expectation that you have the degree of a Juris Doctor, but there is the expectation that you’ve at least read up, done your homework, you’ve been thorough, you’ve looked at your information before you’re submitting it to the court, and you’re proofreading things. And then as far as–it’s really difficult to say, well, you should know how to do this type of motion. I think for most divorces, one of the most important motions is probably the motion that is either seeking to establish a parenting time schedule while the case is going on or some sort of financial support while your case is going on. And so while I say that those are probably the most important motions, they’re also the most difficult to do because you’re setting a standard with that application that will last, in some cases, for the duration of the divorce, or until a major next event happens. Yes, you should know what those things are, but you really need to get information. Aside from the court website, again, there’s the Morris County Bar Association. Most county bar associations do have free consultations, you can ask attorneys. The American Bar Association sometimes can put you in touch with information, explain documents to you. Those places are resources for people. If you are a victim of domestic violence, there’s Jersey Battered Women’s Association that has counselors that will walk you through and put you in touch with other specific people, again, attorneys who volunteer their time to represent you in those situations. It’s really just about doing your homework and getting yourself set up so you know what you know, and then maybe figuring out what you don’t know, or knowing where to go for the information that you’re not sure about. Maybe that’s a better way to say it.

Jessica: Right.

T.H.: Sandra, is there a way if I were to do this and I don’t want to hire a lawyer, that I can kind of do it DIY? I can file the papers myself, I can do some of the work, but then, like you said, the parenting agreement, financial, I want to make sure that what I–I want my homework checked before I go to court. Will lawyers work with you for piecemeal parts of your divorce?

Sandra: There are some attorneys who will do that. It’s an hourly rate, or it’s a small retainer, and they will help double-check your information, make sure that you have everything that you need, point out things that–again, it depends on what your budget is. I’m sure that they will probably work within a budget. I know that I’ve done quarterbacking for things like people who are going to mediation, and they don’t want to bring their attorney, but they want somebody that they can call and say, hey, this was proposed today. What do you think about this?

T.H.: Right, it’s–

Jessica: That’s what I was going to ask because I feel–I was talking the other day about how, for my first divorce, I specifically hired a lawyer that was not necessarily a shark, so to speak, because I knew that I wanted as much of an amicable/collaborative divorce as we could have. My ex-husband, I think not realizing it and not intentionally, hired a woman who is kind of known as a shark. We ended up having one meeting initially, me and my lawyer, and him and his lawyer, and his lawyer was so aggressive, I left that meeting in tears. I told him that I was never going to step foot in a room with that woman again. Fortunately, we were able to work it all out ourselves over a long period of time. My lawyer just would take our notes and put it into the divorce document that it needed to be in terms of being filed at the end. My question is, do you think that one of the most difficult parts of trying to represent yourself is not even necessarily getting through the paperwork and figuring out the documents that you need, but being able to respond and engage with your spouse’s lawyer because they’re not going to go easy on you, they’re going to be eating you alive, right? I would imagine that’s going to be their purpose to it. So I feel even if you think you can do things by getting it done yourself, you may be served with motions and things from your ex’s lawyer, and now they’re just beating you to death with paperwork.

Sandra: Yeah, I think that that’s very important. I know there’s a lot of myself and my colleagues that because you don’t know who this person is, and you get one side of the story, I will only really–I try to limit my communications with a self-represented person to writing. You want to email me, ask for an adjournment, send me a proposal, but to get on the phone, it’s difficult because a lot of times these people are recording you. Now with technology, you don’t know what they’re doing to those recordings. So yes, to your point, Jessica, absolutely, they’re there to defend their client to get the best possible outcome for that person. If those are the marching orders, especially in a contentious case, they’re not going to be warm and fuzzy. But also, it makes it difficult because even we have our own past experiences and reservations about how we’re going to deal with a self-represented litigant, just because we have concerns that stem outside from the facts of your case, so to speak.

Jessica: I would think it’s also you’re dealing with a lot of that person’s–we’ve spoken even with you Sandra about the importance of trying to be able to compartmentalize and be able to try to keep your emotions in check. Because divorce, even though there are a lot of emotions involved, it is a business transaction to a large extent. I would venture to say, I may be projecting, but I would venture to say that most people that are trying to represent themselves are not going to be able to keep things compartmentalized the same way. If I got an aggressive call or an aggressive email or was in a room where my ex’s attorney was being forceful, I feel like I would just collapse.

Sandra: Yeah, people feel personally attacked. Those are the situations where I have seen judges be hard on self-represented litigants, where there is a situation where somebody is in court, and they get emotional, they’re yelling, or crying, or they’re ranting, or they’re bringing up something that is not relevant to what’s happening at that moment. I’ve seen people that they’re talking about just scheduling things, and all of a sudden, somebody will just out of nowhere, that self-represented out of nowhere will be like, you know, I just want you to know that we wouldn’t be here today if my ex didn’t do X, Y, and Z. And then you’re like, well, here we go. The wheels have just fallen off the bus. It’s hard.  

T.H.: So let me ask you if I were going through this today, and everybody goes online and starts looking around about how to file for divorce. Now you see all these file for online divorce for only $399, or we’ll do all your documents for you, we’ll help you with all your transactions, we’ll do X, Y, and Z. I mean, if I didn’t know what I know now, I might be like, great. I’ve got a team for 400 bucks. I’m good. I’m done. What am I really getting? And we’re speaking in very general terms, no one group in particular, but what are questions you should ask when you’re going to file online? Is that just filing for divorce itself? Or is it more?

Sandra: So I’ll start with my answer with what I say pretty much every day in all areas of my life, even to myself, you get what you pay for. There’s no such thing as the greatest deal ever. Oftentimes, that $399 is just to draft a complaint for divorce. Then you are responsible to file it yourself and pay that additional couple hundred dollar filing fee because if you again, did your homework and went online, the filing fees are there. To file a complaint for divorce, I think the fee is now up to $550, $500. So how can they charge you $399 if it doesn’t even cover the cost to file it? What you said T.H. is right, if you’re going to use a resource like that, you need to ask those questions. What exactly am I getting for X amount of dollars? Is somebody coming to court with me? Are you handling the actual paper processing of the paperwork? Or are you just drafting things? Do I have options? Are there packages here about what I’m going to be doing? Knowing exactly what you’re getting into, it’s really important, because oftentimes people will do that, and then they’re left stuck at that point because they didn’t think to ask or didn’t know to ask more information. Because, again, things online can be very misleading. I mean, it’s no different than WebMD if you Google if I have a headache.

T.H.: Right, don’t look up your health.

Jessica: Would you say for people who–because I know you said at the top that the ‘best’ scenarios where people might want to represent themselves would be if things are fairly amicable, if they maybe don’t have children, or they already know it’s going to be an easy custody split and the assets – it’s obvious where things are going if it seems like the divorce is going to be simple, but would you say that the best outcome for representing yourself would be if you’re both representing yourself?

Sandra: Well, I think that certainly is better because of this fact. I often think, and maybe this is just me and it’s not real, but I think what people dislike a lot about lawyers is they say, I want to do X, and so we say, okay, great. Then we send you a document, and it says that you’re going to do X, but it has this additional language. People will then call and say, I didn’t say that. And so the lawyer says, but that’s there to protect you because it’s this full disclosure information and etc, etc, etc. If you have two self-represented people, the expectation is that neither of them would know to put in that language. So if there’s a problem in the future, and you need to go back to court, who knows, nobody can predict that, I mean, sometimes there’s a good feeling, but certainly, you never know, then a judge is probably, I think, from my experience, again, what I’ve seen is they’re more lenient to say, okay, nobody was an attorney at the time this was drafted, nobody used an attorney. I can understand that this language may be gray, or you didn’t include things that I wouldn’t normally see. I’m going to give you both an opportunity to try to work it out, maybe send you to a mediator, or something like that. But I think when one side has it, and the other side doesn’t, you would hope that that language would be in there. But maybe there’s a reason that that attorney isn’t putting the language in there. And so then later on, if you go to say, well, I didn’t know that that was in there, the conversation I often hear is, well, you had the opportunity to get an attorney. So at the very least, you don’t have to have an attorney represent you from day one, but at the end of the day, when you had an agreement presented to you, you had the opportunity at that point to pay a minimal amount to have somebody walk you through that document before you signed.

Jessica: Right.

T.H.: Right. I would imagine the number one reason that people are defending themselves, I mean, I’m being very general in my statement right now, but I would imagine it’s mostly women, but I could be wrong. The stories I’ve heard anyway, are women defending themselves because they don’t have any money. He makes all the money, and she worked and raised the kids. She knows nothing about business. She knows nothing about law. She may not even know where the bank account is. Where does she even begin? And so where does she even get the money to go find somebody? So then she could be easily suckered into one of those special promos online, today only, we’ve got your back, and then get dropped and just have thrown away $500 or more. So is the advice that even if you don’t think you have the money, you might be better off at least seeking some legal counsel than going it alone, especially if it’s in a contentious relationship with people that I know who have been defending themselves for upwards of 10 years now, by the way, were divorced but are still being dragged back to court by the ex for whatever reason? She’s like, I don’t have any money. What are you trying to get water from the well here? The well is dry. I work as a secretary. How am I paying for half of college? I’m trying to pay the water bill. But she doesn’t know how to defend herself properly, but she doesn’t have the money. She’s so deep in a hole now of spiraling, not to mention the emotional repercussions of all these years of being told that you don’t know what you’re doing, and you’re not producing, and what kind of mother are you or what kind of father are you? It’s got to be about the money. What is the advice that you would give someone if it was your friend who says I don’t have the money, and I’ve never worked a day in my life, what do I do?

Sandra: So I think a few things. Again, most family attorneys who really practice this, and again, asking around, getting referrals, they will have a consultation at no charge. There’s a lot of that.

T.H.: Okay, that’s great. Generally, there is, so that’s great to know that.

Sandra: People can do that, right? Especially, some people will charge you but say if you hire me–some people will waive a consultation fee because of the relationship of how that person got to them. There’s ways to do that and get good information at the out start. I always feel terrible when I get these situations of what you just explained T.H., where you have somebody who’s been in this for 10 or 13 years, they filed all these papers, and they finally find somebody who’s going to help them financially, and they come to me, and they dump these documents, and they’re like, I’ve been doing this myself, I need help, and they’ve made it so much worse. So I would say to people who are financially in a really difficult spot, I hear you. I’m not sitting here in an ivory tower saying, well, just figure it out, get a credit card, or take a loan. That’s not what I’m saying. But there are ways before you get started, again, doing homework online, but also just speaking to an attorney that maybe you get a couple referrals from or recommendations, people that have actually used somebody and they were happy with them, and just getting some information. Then if you’re past that point, I think getting money to get somebody to review a final document–like if you were going to save your pennies for something in this legal thing, and you have a document that’s been presented to you, I think that finding a way to get that at least reviewed and explained to you before you sign it is an important use of your funds. There are companies out there that will finance a divorce, but they will do it depending on the assets that are involved. If you know anything about personal injury cases, it’s the same concept where they will give you some money upfront, and then at the end when you get your settlement, they take a percentage of that as their payment. I don’t particularly love them. I think you have to be very scrupulous on those companies, but they certainly exist if it is a situation where there is money there but you just can’t access it. Because I think, initially at least, that gets you a lawyer and maybe gets you into court so you can try to access some of your funds. Then you don’t need to deal with that finance company any further. But again, I think that if you’re resourceful and you’re just mindful about it and try not to make–I think it’s just a very emotional time. People often just feel very stressed out, they’re under a lot of pressure, and they’re dealing with the emotional aspect of it. I mean, you can’t account for that, how somebody is going to deal with that, and then the added pressure to say okay, now I have to do this? So part of the things I say in B.I.G is the first step is you need to find your community. Do you have people who are going to help you? Either you’ve made this decision or this decision has been placed at your feet. Now, do you have family that’s going to support you? Do you have friends that you can talk to? Do you have a therapist? Do you have insurance that will cover somebody? Are you in an online or an actual support group? Are you close with your religious organization? You need that so that peace of mind happens, so you can make good, as Jessica said, business decisions. Because at the end of the day, it really is a business transaction, and that people who do worse or who fail out of it are people who cannot get over the emotional piece of it. That’s why when you read studies they say men do so much better in divorces. Well, part of that is because they can really separate emotions in general, just making a generalization here, by and large, a bit better than women can.

Jessica: Yeah, they can keep it in check. Well, I mean, listen, there’s more we can talk about with regards to defending yourself. I think this is a great start. There’s so much information that we just got from that. I think this really was an amazing conversation. Sandra, as always, thank you so much for your time and your insight, and your wisdom. We are huge fans as you know and looking forward to the next one.

T.H.: Thank you, Sandra.

Sandra: You’re very welcome. It’s always a pleasure.

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