April 10, 2015

A Peril of Pro Se: Involving the Court

182174834A client of mine was recently served divorce papers by her husband, who had undertaken to represent himself in the dissolution process. The Summons and Petition were word-processed forms of the kind available on the Minnesota courts website. Upon receipt of the notarized Affidavit of Service, my client’s husband – who currently lives in another state – filed the papers with the court. I have a feeling that he did so out of ignorance, because, while the divorce papers were not a surprise to my client, the Initial Case Management Conference (ICMC) triggered by her husband’s filing very much was; I imagine it was for him as well. I concluded that her husband did not know that, in Minnesota, filing with the court is not necessary to initiate a divorce, or that filing would set into motion a chain of events and the imposition of a timetable over which neither my client nor her “trigger happy” husband would have much control.

The parties are now engaged in discussions that from a distance appear to me to be a bit frantic, since I gather that neither one of them wants to go to court – they both work, after all (he out of state), and presumably they would just as soon avoid the attorney’s fees – and I have informed my client that the only likely way out of the ICMC is to resolve the case before the ICMC happens. (In fact, I told my client that a continuance was a possibility if the parties could represent to the judge that a full resolution was pending.) In any case, as I am wont to do, I can’t help but reflect on the difference the Collaborative method could have made in their lives. I imagine them able to conduct their divorce at a pace that is comfortable and convenient for both of them, without the intervention of a court system that means well but often imposes itself on a process that can progress just as well without it. I imagine them with a support system of neutrals who can guide them through their process, in which, for example, spousal maintenance can be considered and explored as an option without, as is the case with this couple, functioning as a hot-button issue. I don’t imagine an absence of conflict, only the absence of the pressure-cooker environment that the court system can be, and the presence of moderating influences like a neutral divorce coach, who can keep the clients in touch with their higher goals, about which, frankly, the court doesn’t much care. The Collaborative choice would not necessarily have saved them the fees they are trying to avoid, but the money spent on a divorce is an investment in the future, and like any investment, it can be made for good or ill.

Had my client come to me before her husband had filed, I would have encouraged her to talk to him about the Collaborative option and, I hope, I would have had the presence of mind to raise these points in support of that choice. As it is, I’ll likely be attending an ICMC with parties who don’t want to be there and who may feel overwhelmed by the grinding and implacable process they’ve unleashed.

Josh GitelsonABOUT THE AUTHOR
Josh

Joshua Gitelson comes to the practice of law via a first career in the entertainment industry in Los Angeles, as a film editor and writer for motion pictures and television. The son of a lawyer on the one hand and a clinical psychologist on the other, Josh has gravitated toward family law as an amalgam of these two “family businesses.” His parents’ amicable divorce inspired him to help others through the divorce process with as little rancor and conflict as possible. As a result, Josh has embraced the collaborative divorce model as a technique to complement his work on divorce in the traditional litigation mode. Learn more at http://www.lindawray.com/CM/AttorneyBios/JoshuaGitelson.asp.

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