Between mediations, court appearances and the Virginia Mediation Mini-Conferences, I missed writing my monthly post on how to get a divorce without a lawyer. This week is National Crime Victim’s Rights Week and my posts during April will focus on crime victims. Today, I’m addressing whether or not you can get a divorce without a lawyer when you, or your child, are a victim of crime and the offender is the other parent, or a stepparent. Most of this post pertains to West Virginia.
If you are in West Virginia, you might want to consider the following factors if you are filing for divorce without a lawyer and your family has experienced domestic violence.
1: When did the crime occur? Where is the offender?
If the crime occurred a long time ago, the offender is out of the area and perhaps you have lost touch with him or her, you may be able to proceed without a lawyer. If you don’t know where the offender is living, you may need to serve the divorce paperwork by publication. When you don’t know where the other party is living you can’t mail the petition or have it served personally. Rather, you must publish it in the newspaper. If the other party is not going to be filing an answer or response, remember that you cannot get a divorce in West Virginia based on irreconcilable differences. You will need to include another grounds, such as living separate and apart for more than one year, and have a witness to come to court to testify. To learn how to file for divorce when you do not know where the other party is, follow the steps in the “Petitioner’s Packet.” and be sure to complete this affidavit.
If the offender is incarcerated, you will also have to follow a special process. In some cases, when a person is incarcerated, the court will appoint him or her a “Guardian Ad Litem” since it is difficult for that person to participate in the case while they are incarcerated. The person filing for the divorce, or the petitioner, needs to request the Guardian Ad Litem. Your lawyer can help you with those forms, or some of the forms are available on the West Virginia Legal Services website.
2: Are you or your children risk of harm? Is there any ongoing abuse?
If you or your children are victims of any type of family violence and there is any risk of future harm, you should be in contact with a domestic violence program in your area. Most programs have advocates on staff that can help you fill out the documents you need to obtain a temporary order to help protect you and your children. Some programs can refer you to a pro bono legal program if you cannot afford an attorney. It is not a good idea to proceed to file for divorce, without any legal support if you are at risk of abuse or harm.
3: Does financial abuse prevent you from hiring an attorney?
Many victims of domestic violence suffer from physical and emotional abuse. Others also suffer from financial abuse where their partner prevents them from having any control of the marital assets. West Virginia laws often permit the judge to order that the other party pays for legal costs in some situations.
4: Speaking of financial abuse, do both parties feel confident that there is full disclosure of all financial matters?
In some states, including West Virginia, both parties are required to fill out a financial form and they promise that they are fully disclosing their assets. If your spouse has withheld financial information or if you believe that he or she will try to hide assets, you should hire an attorney.
These are just a few of the issues that you might consider if you or your children have been victims of domestic violence before you proceed to get a divorce without a lawyer. Any of these factors do not mean you can’t file without a lawyer, but you might want to consult with a lawyer FIRST.
Some clients have also asked if they can still obtain the benefits of mediation even if they have a lawyer, or there has been a history of domestic violence. The answer is often "yes, however...."
When parties have lawyers, they are always welcome to participate in mediation. Parties can attend mediation before they hire lawyers, after they hire lawyers or any time in the process.
When the parties have any history of domestic violence, mediation can be an option, depending on the circumstances. Most experts in the field do not agree on when mediation is appropriate when allegations of domestic violence have been made.. Different states laws often restrict court referred mediation when the family has experienced domestic violence.
What’s the answer? If partner has abused you or your children, proceed carefully and only after you have as much information as you can get. Talk to the local domestic violence program. Read. One source for folks in West Virginia is the West Virginia Coalition Against Domestic Violence. Finally, you may register for our free monthly sessions where you can attend and ask questions about the family laws in West Virginia.