As attorneys, we know a lot of people don't have the budget to afford representation, but a lot of people go into the courtroom thinking they'll simply report truthfully on their situation - and win - because the judge thinks they're right. Or believable.
And it's just not true. That's a very difficult gamble.
But there are ways to win without an attorney just by doing some things a certain way. In this first episode of our new 2023 season of Modern Divorce Podcasts, your host, attorney Billie Tarascio and colleague Julie LaBenz unwrap the insider tips that can keep "pro per" or self represented people safer in the courtroom. This episode is longer than our usual episode because it is packed with information you can't get anywhere else.
Take notes, and download the transcript because you don't want to miss a thing!
If you're interested in learning more, sign up for more info on this subject at WinWithoutLawSchool.com to get email updates that will help you win your case.
As attorneys, we know a lot of people don't have the budget to afford representation, but a lot of people go into the courtroom thinking they'll simply report truthfully on their situation - and win - because the judge thinks they're right. Or believable.
And it's just not true. That's a very difficult gamble.
But there are ways to win without an attorney just by doing some things a certain way. In this first episode of our new 2023 season of Modern Divorce Podcasts, your host, attorney Billie Tarascio and colleague Julie LaBenz unwrap the insider tips that can keep "pro per" or self represented people safer in the courtroom. This episode is longer than our usual episode because it is packed with information you can't get anywhere else.
Take notes, and download the transcript because you don't want to miss a thing!
If you're interested in learning more, sign up for more info on this subject at WinWithoutLawSchool.com to get email updates that will help you win your case.
[00:00:00] Billie Tarascio:
Hi TikTok. How are you? Today's topic is on what it takes to effectively represent yourself in a family court case to save thousands of dollars in legal fees, which You know, I love, like that's a great thing. So, Julie, do you wanna go ahead and introduce yourself?
[00:00:19] Julie LaBenz: Hi, I'm Arizona Lawyer Julie LaBenz. I've been a lawyer in Arizona since 2006. I've been a trial lawyer my entire career and have worked through or worked in a couple of different jurisdictions throughout Arizona, mostly in rural counties.
I'm currently in Yavapai County. I'm owner and founder of Labenz Law and handle mostly Divorce matters. I, I tell people I handle Divorce and death and, you know, , I went to these like marketing seminars before and they would teach you all these fancy ways to talk about what you did. And I would try those out and people would look at me and be like, what do you do
Cause then I'm just like, I'm [00:01:00] a lawyer. I do Divorce and death and everybody gets it now.
[00:01:02] Billie Tarascio: Divorce and death. So do you do estate planning and probate?
[00:01:05] Julie LaBenz: I do, I used to do a lot more of it. Now I just do it here and there, but yeah, when I was in La Paz County, it's one of the biggest retirement communities in Arizona, so I dealt with a lot of contested probate matters trust, litigation, estate planning, like a lot of stuff in that arena.
[00:01:25] Billie Tarascio: That's awesome. That's awesome. I'm Billie Tarascio. I am a family law and Divorce attorney in Arizona as well as Julie. I have been outta law school since 2005. I think you were 2006, right? Mm-hmm. So we've been doing this a long time and so Julie and I both own litigation practices, but we also have for a long time, looked for ways to help people represent themselves.
That has been a passion of mine for many, many, many years since the founding of the firm that is now Modern Law that used to be called Access Legal Services. That was all about increasing access to justice. So it's [00:02:00] very fun that Julie and I have now come together to offer the latest iteration on helping people help themselves, which is our platform called Win Without Law School.
Do you wanna tell them about our platform?
[00:02:14] Julie LaBenz: Yeah, it's it's something that we've been creating. It's still a work in progress based on the feedback that we're getting from our audience. But the, the real vision behind it is this belief that Billie and I both share, which is that you can effectively represent yourself in court if you have the right tools.
And with the way the economy is right now with how lawyers just keep getting more expensive with how there's so much uncertainty with legal fees, lawyers charged by the hour, you may have a very litigious person on the other side. And then with this fact that custody cases can go on for, you know, a decade or [00:03:00] longer gaining this information, knowledge, these skills can literally save you tens of thousands of dollars.
I've had a couple of custody cases where the final legal fees were equivalent to a college education. And, you know, I really noted that and thought, wow, these two parents could have figured this out and put this money aside, but that wasn't how it worked out. And so finding ways to minimize, minimize legal fees, especially if you're facing a very contentious situation.
Can make a huge difference.
[00:03:37] Billie Tarascio: Absolutely. And the fact is, like many, many, many people represent themselves in family court. They simply have to, if you've got a case that's going on forever and ever it's almost impossible to afford it. And then there's sometimes when it doesn't even make sense, like if you're enforcing child support, it's simple enough that you don't need to spend the money to hire a lawyer to enforce things [00:04:00] like child support.
So having, and there's a lot of information out there, but nothing really geared towards how to actually represent yourself in court. Now, today we're gonna talk about that, but we also recently recorded a a course on trial skills. Teaching people how to do everything from direct examination, to cross examination, to opening statements, to pretrial statements, and you all can access that for free on our site WinWithoutLawSchool.com.
Go ahead and register there. The paid portion will come when you wanna practice your skills because the real value is in practicing and in getting feedback. And that is something that our, that we are offering through win without law school. But even if you just want the information and the course, you can access that for free at win without law school.com.
[00:04:53] Julie LaBenz: Yeah, we're gonna have more and more free resources and paid for resources coming out over the next few weeks. But [00:05:00] let's, let's dive into this topic a little bit more about what does it take to effectively represent yourself? . Sure. We're talking about how there's this opportunity, but it is some, isn't something that you necessarily just jump into without a plan because you can really mess things up.
And I used to work with a lawyer who would say to me, oh, I love when people do their own legal work because it ends up creating a bigger, an even bigger problem, and they have to pay me more than they would've paid me if they just came to me from the beginning. And I didn't really like that point of view.
[00:05:35] Billie Tarascio: Classic.
[00:05:36] Julie LaBenz: That's, that's what he, you know, he would kind of giggle and be like, oh, I love when people do their own legal work. So it's not just something to jump into and think, oh, I'm gonna do this just based on what I think I should do. It's better to have some information. And what that means is that you need to be willing to put the time in to learn.
You're not just gonna be able to show up in [00:06:00] court. We talked about this a little bit last week and be like, okay, judge, figure this out for me.
[00:06:04] Billie Tarascio: Right.
[00:06:04] Julie LaBenz: You know, you're going to need to figure out how to navigate the system in a way that can at least set you up to get what you want. I can't guarantee you're gonna get what you want, but at least get you on that path.
So you need to be willing to do it. And you know, Billie, what is your thought on that? Because it's not just like, oh, I decide I wanna do this and it's done right? Like, there is some leg work you gotta put in.
[00:06:29] Billie Tarascio: Right, and not everyone is a good candidate. Not everyone can effectively represent themselves in court.
If you are unable to articulate your position, you know, if you shut down under pressure or you are unable to stay composed either because of anger or emotion, then you are not a great candidate. So there's a lot of prep work that goes into play. Now, let's say that right now you are somebody who maybe doesn't speak well, and so you think, no, that's [00:07:00] not me.
You can get better at it. It's just that it's going to take some effort. In order to be an effective self representing person, you're going to have to put in time and effort to get good at this. Like I said, Julie and I have been doing this for more than 15 years, and we're still always working to get better, and there's still always things that we're learning.
So you can't expect that you can just decide it and then make it happen. So the first point that you've got here is a willingness to learn family law and procedure. Now, that's a
[00:07:32] Julie LaBenz: massive undertaking, right? And, and the final part of that is as it applies to your case, right? I mean, it is, there is a lot going on, but if you have a more narrow case, like a child support modification like you talked about mm-hmm.
then there's less on the table to mm-hmm. wrap your brain around. But yeah, you need, you're gonna need to take some time to figure out, figure it out. Because if you don't understand the [00:08:00] procedure, then you're not going to understand when it's time to exchange documents, when it's time to negotiate, when it's time to prepare for trial.
And, and that's something that's really difficult for somebody representing themselves, is understanding what each hearing's about. Right? So many people come to every hearing, thinking, every hearing's a trial. Mm-hmm. , and that's just not the case. I mean, if you look at a Divorce or really almost any type of family law case, the first hearing the court's gonna set is something called a resolution management conference, at least in Yavapai County.
That is like for, you know, answers filed 40 days later. The, the Resolution management conference is on the calendar, and it, it's a res, the, the court is managing the resolution of the case. There is no evidence presented. It's actually a very lackluster hearing. People get all, oh, all this stuff's gonna happen.
No, actually, really nothing's gonna happen. We're just gonna touch base and manage how this case is gonna get [00:09:00] resolved. So if you don't understand what the procedure is, or what these different types of hearings are, You're gonna be very confused. And that's about taking the time to learn and figure it out.
And that's something that we're looking to provide and win without law school, an avenue to make the law more user friendly because , if you just dive into it, it is very overwhelming. I remember going to law school and seeing the first, you know, statute book for Arizona law and it's this huge thing.
And you know, you're used to reading books that are like fiction or nonfiction with chapters, and all of a sudden you just have all these different statutes and, and sections. And it's not user friendly. It's not fun to read, it's not straightforward and it can be really overwhelming. And so if you're just jumping into that reading through every statute, that's not going to do you much good.
But with, when without law school, we're looking to [00:10:00] take these types of cases and take you right to the law for that type of case. So you can start seeing, okay. What's the type of evidence relevant here? What, what are some arguments I can make?
[00:10:12] Billie Tarascio: Absolutely. Absolutely. So one of the first steps that you can take here to determine can I effectively represent myself in court on this particular case that I have right now is determining what is my case about right now?
What is on the table? What are the issues on the table? And what is the law that relates to that issues? Because you've got two things you have to learn. You have to learn what does the law say about the issues in front of me, and then what was, what must I procedurally do to effectively present my case?
So post decree or after your Divorce is typically easier because there's fewer issues if you're only dealing with a modification of legal decision making and parenting time, that's a, that's. [00:11:00] An amount of a case that you can probably learn on your own. If you are trying to get a Divorce yourself and you're litigating and you're fighting over business values and dividing 401ks and whether or not somebody wasted money on pornography and custody of your children and whether or not you wanna relocate that, would the, I think that would be impossible to effectively, effectively represent yourself in court with all of those issues and do a great job.
So first question is, what is it that I am dealing with? The second thing that you have here is the ability to separate emotion from reason. Tell me about
[00:11:41] Julie LaBenz: that.
I mean, when you're, when you're in it, you're in it, you know, you don't have necessarily that outside perspective. You don't have that, you know, for me, when I'm representing somebody, it's not my life.
I'm able to have some distance. From what's going on. And I'm able to give my [00:12:00] clients some perspective and talk to them about the big picture and the law and, and bring some reason into the dialogue. But when you're actually going through it, sometimes the emotion of it is just so overwhelming and you can get so mad about something the other side did, and you're not really understanding that, oh, actually there's no remedy for that thing in the court, or the courts don't care about that thing, or that's just going to slow our case down and cause a big diversion.
Like there's, there's a lot more to it than just getting your emotional needs recognized by the court. Really that's not the role of the court at all. And this is one of the biggest challenges I generally face when I'm, when I have a case against somebody representing themself, is that I'm often having to get them to come out of this emotional state and move into a rational dialogue.
And, and it's tough cuz they don't trust me. And so it [00:13:00] takes a lot to get there sometimes. But you're going to need to figure out what is reasonable and start moving in that direction instead of just reacting to every trigger that comes up on a daily basis. In your case, I
[00:13:15] Billie Tarascio: do think it's, it, there's separating emotion from reason, which is difficult because it's your whole life and, and these things are so, so, so important to you.
And then there's also the fact that. Like the court has made most things no fault. Most things the court does not care about, but it seems very reasonable to you that if somebody did X, Y, and Z, that you should be able to go do A, B, and C. Like that might seem reasonable, which goes back to the first point about learning.
You gotta learn the law, you gotta learn the procedures. And then you almost have to learn the culture as well of family court of your particular judge, of what your, your [00:14:00] outcomes might be. What is the range of outcomes that you might end up with so that you know how to ask for what you can actually get and how it might benefit you.
The next thing that you have on here is collaborating with the right attorney. Now, I thought these people were representing themselves, .
[00:14:18] Julie LaBenz: I think that in order to have the most effective strategy representing yourself, you need to get some legal advice along the way. To make sure you're on the right track, to make sure you're doing things right, to get some insight on your particular judge.
I really think if you're gonna represent yourself, you should still have a budget set aside or that you start cultivating for a lawyer so that you can communicate with them, you know, maybe once every couple of months or something like that to just keep your case moving and help you move forward.
In particular at the outset, I think that's one of the best times to [00:15:00] collaborate with a lawyer before you file just to really solidify your case strategy. What am I asking for? Is it reasonable? Does the law support me? What are the facts that I really wanna focus on? What's a settlement offer I could make to the other side, those that would be a really useful hour with a lawyer to sit down, figure out your case strategy and formulate a settlement offer.
Tho those are just some thoughts. It doesn't mean, you know, and then if things get more complicated, you have somebody you're already working with if you do need to bring them on, on a limited basis or, or for a particular hearing or it's somebody you can touch base with throughout the case to help you get a final resolution in in place.
[00:15:43] Billie Tarascio: Yeah. And there's more options now than ever before. Arizona has licensed legal paraprofessionals. These are paralegals who have been licensed and certified by the Supreme Court of Arizona to practice law. That is a [00:16:00] whole nother avenue that's opened up to people in addition to certified legal document prepares who are also very, very useful things.
And then limited scope legal services. Just so many options to get legal support. And then there's things like joining support groups or joining WIN without law school and trying out your arguments. That's not legal advice, but you're gonna get feedback. So there's a lot of options to make you more effective.
You should not truly DIY when you have all this support around you that can help you
[00:16:32] Julie LaBenz: be better. Yeah, I think you're going to have a much more frustrating process if you try to just do it all yourself. Mm-hmm. , you know, like it's hard enough as it is. Take these avenues to make it a little bit easier for yourself.
But like we talked about before, if you're gonna collaborate with a lawyer on this more limited scope basis, make sure you're collaborating with the light, the right lawyer who's used to working [00:17:00] in that framework. Mm-hmm. , because they will be the ones who are best at empowering you to do it yourself and giving you guides and you know, maybe writing out a checklist for you to follow or something like that.
Whereas if you're working with somebody who thinks no, people can't represent themselves effectively and they have to do everything through a lawyer, that person just isn't gonna have the mindset to be thinking, oh, how can I empower this person? They just won't be coming from that point of view. Right, right.
So team up with the right person.
[00:17:31] Billie Tarascio: Right. I totally agree. Now there are a ton of questions coming in on Oh, okay. The TikTok live feed. And I just wanna let you know I see you and we are gonna do that. We are going to get to open q and a. We're just not there quite yet. The next thing we're gonna talk about is negotiation skills.
You have to have negotiation skills to effectively represent yourself in court. How can people learn those?
[00:17:56] Julie LaBenz: It? Well, when without law school, that is something that [00:18:00] we are definitely going to teach because it is so important. So that's one resource. You need negotiation skills because you don't wanna leave everything to the judge.
Mm-hmm. . Okay. In fact, your goal is going to be to resolve as many issues as possible. And ideally, your entire case before going to any sort of trial. You don't want to leave the judge. You don't wanna leave it up to the judge because you just don't know what the judge is going to do. And maybe the judge will rule in your favor.
Maybe not. You just. by having a set outcome that's been agreed upon, you have a certain outcome, you've, you've contributed to that you've been a player in it. And then it's also establishing some really good skills, especially if you're co-parenting, to keep negotiating and reaching agreements in the future.
So there's, there's a really nice foundation there too. But oftentimes when you're representing yourself, you're often dealing with the other side who's representing themself as well. Okay. Sometimes they have an [00:19:00] attorney, but most often when a problem arises, you know, there's a, there's a discussion between the two parents or the two spouses.
So number one, you really need to be in alignment with why you're having this discussion. What's your goal? Do you have a proposal? What are the terms? Are you clear about what the terms are? Have you written them down? These are gonna be important because if you're just going in with no real framework into a discussion, you're likely going to fall into this blame game dynamic where instead of making any progress, you and your co-parent or you and your spouse are fighting about some drama thing that happened in your relationship at some point.
And there's, this is your fault. We wouldn't have this problem if you did that. And we, we, this, it, it's just, it's like coming back to blaming who's to who's, or figuring out who's to blame instead of coming up with a constructive resolution. [00:20:00] So with negotiations, that's something when you're coming into this dialogue, you should have a plan, either an offer or a set of questions.
You're going to be asking to cultivate a dialogue that can lead to a discuss. Oftentimes, nobody wants to be told what to do. So if you have this whole plan and then you come in and you're like, and then we're gonna do this, and then you're gonna do that, and then we're gonna do this. Okay? And the other side's like, forget you.
Like, get outta here. I don't, I don't wanna do anything you say. So sometimes you need to think about this. Like how is the other side going to perceive this? And rather than me making the suggestion, what if I ask a question? Well, what would you like to do for parenting time? Mm-hmm. , what's your proposal?
So you really need to sit down and think about the negotiation. And then one final tip, and we talked about this recently, is not just giving up at no. If you get an initial no from the other side, I encourage you [00:21:00] to ask questions, ask for a counter offer, like why no, what part is no? Is there anything in there that they're in agreement with?
And if they just say, no, the whole thing sucks. I don't like any of it. Well then can, can they make an offer? Okay, you don't like my offer, then I would like one from you. Can you give me one in three days? You know, put a deadline on it to keep things moving. So negotiation skills don't necessarily come naturally.
It's something that you do need to spend some time with. And this is something that Billy and I have a lot of useful tips on to help people. I'd like to work behind the scenes sometimes. Sometimes I'll empower my clients with stuff to say to the other side, because once the lawyer gets involved, it can ruin the whole dynamic.
Mm-hmm. . And so sometimes it's really helpful for the parent or the spouse to be empowered to go into that discussion. And then there can be a feeling of a equal playing field. Which can facilitate better communication. [00:22:00]
[00:22:00] Billie Tarascio: Yeah, I, I love that. I love that a lot. I also think sometimes, you know, my favorite negotiation tools don't come from lawyers.
They come from psychology books. So some of my favorites are influenced by Robert Kini, or Cini is how you pronounce it. And Chris Voss never split the difference. Great, great, great books that can help you with some negotiation skills. And negotiation skills at their finest are about asking questions, determining what's important to the other party, and then figuring out how to give them what they want.
So that is a different mind frame than most of us go into negotiation with, but that is the mind frame that will help you get the best outcome for yourself. Because if you understand what they want and figure out a way to give it to them, you can usually get your own needs met at the same time. And then the [00:23:00] other thing that I really like to do is I like to draft proposed parenting plans that are comprehensive, very, very thorough.
Like for instance, I have a mom that I'm working with right now, we're going into mediation, and she really wants final decision making. Dad has blocked her ability to get her kids counseling. She already lives outta state with her kids. She, she wants final decision making dad's a jerk. I wrote a proposed parenting plan that gives them joint legal decision making, but gives each of them the ability to make decisions after discussion in their own respective.
What does that do? , that gives mom defacto final decision making about school and medical and counselors where she lives. So, but I did it, you know, in a way that did not make him feel like he was losing. So it's all, to me, negotiation is so much more about [00:24:00] psychology than getting quick wins or pulling one over on somebody.
It's, it's truly about creating win-wins while thinking about the psychology of where each parent is coming from.
[00:24:14] Julie LaBenz: Yeah. And I think women in particular can be really good at that, you know, sitting down and analyzing the different aspects of the personalities and walking that line and figuring that out.
and those are great points. , there is so much psychology to it. Right. And another thing I really like to do that a lot of self-represented parties don't necessarily think about is identifying points of leverage. Mm-hmm. , you know, like if you're flexible on child support and you know that there's a range you're willing to pay or accept mm-hmm.
like some people are like, oh, whatever. Yeah, that's just that. And it's like, no, that's not, whatever. That is a great negotiating tool you've got right there. Right. And so that's another part of the analysis before you go [00:25:00] into the negotiation is really identifying those points of leverage and what you ranges are of what you're willing to negotiate with.
Because that can give you a lot of power in the discuss.
[00:25:13] Billie Tarascio: Totally, absolutely agree. I've got a sick kid at home, I have to step out and help him with homework. But the next topic, either Sarah can ask you questions or the next topic that we've got on is trial skills. So do you mind taking over for a minute?
[00:25:26] Julie LaBenz: Yeah, no problem. So obviously we have our new trial skills course, but in handling a family law case, I always like to take a two-pronged approach. There's the trying to settle it and, and working through the negotiation, but then there's preparing for trial in the background so that if the negotiations fall through or you don't reach an agreement on every issue, you're still ready to go to trial.
And by being ready for trial, that also can give you some leverage in the negotiations. Preparing for trial, knowing what to do, and then putting [00:26:00] on a good trial obviously are going to be key skills to have in effectively representing yourself. And that's something that Billy and I are teaching in the course.
Also, some of the videos have been released on the Modern, Law YouTube page. So you can also go there to see some of these trial skills videos. Also a couple final points are just having patience in faith. You know, understanding that it's going to be a challenging process. It's going to be even a bit more confusing, trying to navigate it by yourself.
So having patience in faith in yourself and then having the ability to put your case into a compelling story and tell the judge your story. Those are my final points. You know, there's so many things that happen in a case. There's so many things that happen. you know, in, in your life and in your marriage or, or with your co-parent.
And you've really gotta be able to distill [00:27:00] that down to some key points and explain your story to the judge. Otherwise it, you can just end up telling a story that's very confusing, that doesn't really, you know, land with the judge. Alright. With that said, Sarah, why don't we jump into some of the Q and a.
Oh, you're on mute. I don't hear you.
No.
Okay. Well, I think it's just me for now. Sarah's back. I'm back. There we go. Now I can hear you. All right. Let's see.
[00:27:31] Sarah Encarnacion: What questions do we have? What is the Arizona definition of child abandonment?
[00:27:38] Julie LaBenz: Okay. So first before we jump into this abandonment question, I just wanna quickly say that by answering these questions, there's no attorney-client privilege that comes into place.
This isn't legal advice. I'd have to sit down with you and get your exact situation. So this is just general legal information. And I'm licensed to practice law here in Arizona. [00:28:00] So those are just some little disclaimers. Okay. Abandonment. So I mean, I would have to grab my book, you know, to look up the actual definition.
I don't have it memorized or anything. But it, it generally comes up in Title eight, which has to do with children. And this is where dcs formally known as CPS, will come in and file a case citing to abandonment, citing to neglect. So it can come up in that context. The other context could just be in, in terms of parenting time or child support.
So as far as parenting time, you know, the, the court doesn't necessarily look at abandonment, but it would more be, are you not exercising your parenting time And does that merit changing? It, does that merit modifying the parenting time because one parent isn't exercising their time? That could be an argument as far as child support [00:29:00] goes.
Some people argue, oh, well look, he's not exercising any parenting time. Either I don't even want him to pay child support, just nothing he or she or you know, they should have to pay more child support because they're not exercising time. But it's not necessarily in terms of abandonment. I don't know, Billy, it was just a general question about what is the definition of abandonment.
Hmm.
[00:29:26] Billie Tarascio: Okay. Well, legally it doesn't come up in family law. It's, there's so no, in none of the family law statutes in family court, do they mention abandonment in the termination of parental rights statutes? It does. That's when abandonment in its legal form has, has any sort of importance. So, and why is that important?
It's important because, let's say that you've been abandoned and your child has been abandoned. It's not that that's not important to family court. It [00:30:00] is. The facts surrounding the abandonment are important, but since abandonment itself is not in any of the statutes, is not a best interest factor, is not something that a judge needs to make a finding about.
We don't wanna argue abandonment. We wanna argue the facts that meet the statute in question. And this is what's, I think so challenging about family law. Your story matters. Everything that has happened to you matters. But it has to be framed within the correct statute that is in front of the judge at the time, which goes back to our very first point.
You have to learn what applies to your case. So that's a, a long winded say way of answering your abandonment question. Really it becomes more about how to effectively represent yourself and understand the system that you have to work within.
So did we already talk about trial skills? Yes. Did we already talk about patience and faith?
[00:30:58] Julie LaBenz: Yeah, we were moving into the [00:31:00] q and a.
[00:31:01] Billie Tarascio: Oh, great. We're done. Great. Q and a. We have so many. What's the next question?
I want to know. What other way can I find or serve
my child's father? I want full
custody of my daughter and I want
[00:31:15] Sarah Encarnacion: to change her last name.
[00:31:18] Julie LaBenz: Okay. So find or serve. Or find and serve.
[00:31:22] Sarah Encarnacion: Find or serve. I'm assuming it was,
I'm assuming both.
Okay. We have, so if you need to find the person you can hire a private investigator to try to locate some, you know, last known address, things like that. This goes to the rule of procedure on service and the, in it, it's pretty detailed, but essentially your case would get filed and once your case is filed, that kicks off, I think it's [00:32:00] 120 days, you have to complete service.
[00:32:02] Julie LaBenz: It's either 90 or 120. . So within that time, you've gotta find him and serve him. And so this is where you have to start engaging in due diligence to try to find him. So you can't just be like, oh, I don't know where he is. Like, you need to show, okay, I contacted this person. I hired a private investigator. I sent this notice to the last address I had for him.
I sent him a text message to the last number I had. I sent him an email to the last email I tried. Like, you have to show serious efforts to try to find this person and serve them with the papers. And then if through all those efforts, you still aren't able to show them, you can ask the court to allow you to do what's called alternative service.
But you need to file a motion and you need to detail all the due diligent efforts you took. And then get a court order to do alternative service, which can be publishing in a local newspaper, or I've done social media, I've done email, I've done texts. You know, [00:33:00] depending on what the situation is. . So there are a lot of options for alternative service.
So that's if you just can't find him, if you can, if you do locate him, then you can, if you're, if you're in communication, you can ask him to sign an acceptance of service. You need a notary present. That can be kind of difficult depending on if you, I, it sounds like you have no communication, so that might not be a viable option.
If you have a good address and they're signing for mail, you can do certified mail, they sign the green card, return it, that's service or you HigherEd process server. Could be a sheriff deputy, it can be a private process server to go to that, their work or their home and serve them, and then the service is complete.
That, I mean, all of that can be challenging. Definitely need to pay attention to the rules, potentially work with a lawyer or some sort of community legal services. [00:34:00] If you're receiving welfare benefits, you may be able to get assistance from the attorney general's office depending on the child support situation and welfare benefits.
So that's a couple of options As far as your other requests of the things that you want from the court a lot of that is gonna depend on whether or not he ultimately participates in the case. If he doesn't and you serve him, you can get a default order, which maybe you can get all the things you're asking for on default.
But if he participates in the case, then you'll either need to reach an agreement with him or when at trial. So it'll just depend on how that unfold. Billie, your thoughts?
[00:34:44] Billie Tarascio: Well, I think you covered a lot of it. The, the only thing that I might do is first ask, what do you want? Is, are you trying to change your child's name? Is that really the primary [00:35:00] purpose? Cause that's a different action than asking for sole custody. You can file for a name change separate from a family court action.
So I always think the best thing to do is figure out what's your end goal and then work backwards. But I loved everything that you said about service. There are many, many ways to serve people really many, many, many ways. And if you can't find them the courts are usually, in my experience in Maricopa County, pretty open to allowing alternative service.
which might be through Instagram or Facebook or text or
[00:35:39] Julie LaBenz: whatever.
All right. Let's do another question. Next question. If my case is
[00:35:44] Billie Tarascio: going
[00:35:44] Julie LaBenz: to court and I don't feel prepared, is there a cost to cancel date? Hmm.
[00:35:51] Billie Tarascio: So you can't always cancel your court date
[00:35:57] Julie LaBenz: . And your judge might get a little [00:36:00] upset if you say, I don't feel ready. It's your excuse. Especially if your trial's been set for several months and likely,
[00:36:09] Billie Tarascio: you know, so, so if you asked for the, if you filed the petition, then it's even.
Like it's even more of a problem. So you, you gotta get prepared most likely. But with that being said, judges also do grant continuances and if you wanna file a motion to continue, that's not canceling a trial, it's asking for more time. If you can figure out a way to blame the other party , Hey, I haven't gotten the discovery I asked for, or the rule 49 disclosures weren't complete.
That would be a better way to say it than to say, I don't feel prepared. .
[00:36:43] Julie LaBenz: Yeah, you definitely need to have a better reason if you really want to win on that continuance request. And I would get that in as soon as possible too. You're not gonna wanna wait until the last minute. And I'd reach out to the [00:37:00] other side too and ask them, what's your position on this?
Are you in agreement? Do you need more time too? Cause if you can have it be a stipulated request where you're jointly asking, the judge is more inclined to grant it. Also the rule actually says you're supposed to reach out to the other side and put their position in. Whether they agree or disagree.
They can always do an additional response explaining their position, but the rule does want you to reach out to the other side and ask their position on your motion to continue before you file. File it.
[00:37:31] Sarah Encarnacion: Right. Next question. What's a reasonable amount of time for an attorney to respond to any questions or processes, I'm assuming to their client?
[00:37:42] Julie LaBenz: You know I would say one to two days would be a reasonable amount of time. Some law offices is make a promise about how quickly they'll respond. Obviously you need to be cognizant of holidays, weekends, things like that. Or if you're getting an [00:38:00] auto response saying your attorney's on vacation or something, you know, I mean, obviously there's some factors to consider.
But I'd say a day or two. And, you know, it's, there's nothing wrong with a nice little reminder, nudge, Hey, I sent you this message. I haven't gotten response. You know, when do I, when can I expect to hear back from you? Whether it's your attorney or you're representing yourself and you're contacting your posted party's attorney you can always do a friendly follow up and confirm they got your message.
[00:38:33] Sarah Encarnacion: What if the other party is filing custody for their disagreement on how you parent?
[00:38:39] Julie LaBenz: Oh, so you're defending essentially what if the Yep. So the other side is claiming that you're doing something with your parenting that justifies modifying the parenting plan. That's what it sounds like. Either parenting plan or decision making.
So, yeah, so you're in, you're on the defense. [00:39:00] And you need to start building a defense. So one of the first things I like to do is go through the petition and write out bullet points of what are their allegations. Like maybe there's three things that they're accusing you of you. You don't get the kids' teeth brushed, you get them to school late and their homework's not done.
Okay. Let's say those are the three things. I would write those out and then I would be looking to either A, if it's true that I haven't done that great on those things, I would be looking to correct it immediately. Or B, if it's a lie that I haven't done those things, I would be looking to show, no, that's not true.
By making a log of every time we brush teeth together and getting the kids attendance record at school and getting their report cards and. You know, getting that evidence, that's going to [00:40:00] contradict the allegation. And if the, like I said, if the allegation is true, your best thing is to correct it.
Because if you can, by the time you get to court, which could be several months from now, if you've now been correcting this issue for several months, the other side's case is pretty weak, . So those are my thoughts. But yeah, you're, you can do a counter petition if you have claims against the other side.
You can do a counter petition against them and have everything heard together. Sometimes that's an effective strategy. But mostly you're looking to rebut or overcome the allegations. Billie? Yeah,
[00:40:39] Billie Tarascio: you, you. So I really suggest in this case, so this, what this person said is they filed a petition saying they don't like my parenting.
Now I can tell, based on the wording of your question, you don't think this is a big deal. But I don't know if the judge will think it's a big deal or not, because it depends on what it is. And sometimes my clients [00:41:00] might not think it's a big deal, and judges do think it's a big deal. If you post this specifically in our decode, your Divorce group, there are a ton of people who have experience in the local courthouse.
Lots of people who have had lots of experience will be able to tell you, oh, judges don't like that.
Or that's not a big deal. The first thing you need to figure out is, is what they're accusing you of a big deal or not. And it might be, let's say that you're allowing your five year old daughter to sleep in the same bed with her 12 year old stepson, and you don't think this is a big deal. A judge might very well think that that's a very big deal, or so it really depends on what they're accusing you of.
If it's truly nothing, you might be able to file a motion to dismiss. So unfortunately, there are times when lawyers come in really handy and, and they can help set you a framework that you can then represent yourself within much more [00:42:00] effectively if you have that knowledge.
[00:42:01] Sarah Encarnacion: Great. We have a couple mediation questions. The first one is, I have a question. My mediation keeps getting rescheduled. Is this a bad thing?
[00:42:12] Julie LaBenz: I mean, hard to know. That's that's pretty broad. In my experience, you know, I like to look at delays as being favorable. I mean, I, you just don't know, but the delay is the delay.
If there's nothing you can do, I'd like to look at that as, okay, maybe this is favorable. Maybe there's some extra terms that we hadn't talked about, or, or there's some event that is gonna unfold that, you know, I'll look back and be like, oh, I'm so glad that there was this delay. But I mean, that's a pretty broad question.
I, I have no idea if in the end, that's favorable in this particular questioner's situation or not.
[00:42:52] Sarah Encarnacion: What are some reasons that a mediation would be delayed?
[00:42:56] Julie LaBenz: If the mediator got sick or the other side [00:43:00] had some sort of delay, or maybe a scheduling conflict came out for somebody involved.
Maybe somebody didn't make their payment on time, and so there was a delay until the full payments received. Okay,
[00:43:13] Sarah Encarnacion: my mediation is coming up. What do I need to prepare for?
So
[00:43:20] Julie LaBenz: I like to come up with a, you know, bullet points of what my requested outcome is, or, or at least the ranges of an outcome for each issue that I am happy with.
And if possible if I could formulate that into an offer because, you know, somebody needs to make the first offer at the mediation, and so you potentially could be ready with that. But I would be thinking about each issue, what your requested outcome is, and then also, you know, if, you know there's something that's really big to, on the other [00:44:00] side.
Something about the parenting plan and they just won't let it go. I would prepare a little more on those types of issues because that's probably what a lot of the focus of the mediation will be on.
Any thoughts, Billie?
[00:44:14] Billie Tarascio: I think that you did a great job. I, what I find with my clients is that before mediation, and one of the questions that here on TikTok is, do attorneys go to mediation with you? They absolutely can, or you can go by yourself. There are a lot of different ways that you can do mediation.
If your issues are very complicated, then it's usually a good idea to have a lawyer with you. If they're not, then it might be a waste of time to have a lawyer go with. But what I really like to do with my clients is help them change their mindset. So when we go into court, we're arguing a position and we talked a little bit about how to tell your story to the judge and how to argue your case.
Our job is to advocate for you in court and to argue on your [00:45:00] behalf to help convince the judge that you are right. That's the way court's set up. Mediation is not set up that way. Mediation is truly about what can I live with? What is an outcome that would serve me and my family moving forward? So for me it's really about mindset.
Sometimes I have people who wanna do arbitration and mediation at once. Arbitration is when you allow a private person to act as the judge and make a decision on your behalf. I love arbitration. I think it's great, but I think it's very difficult to have a mindset of argument and advocacy and settlement and negotiation.
So I really like to separate them.
[00:45:40] Sarah Encarnacion: Okay. I think I, the one in here ins of questions. Here's a good one. What can I do if the other parent has been holding the child and encouraging the child not to see the other parent?
[00:45:54] Julie LaBenz: Yeah, it's, it's a tough situation. So there was withholding and [00:46:00] discouraging. Are those the two concerns? Yes. Okay. So as far as withholding the child, you know, do you have a parenting plan? Is that a violation of the plan, enforcing it? That could correct that issue. If, if you just have an agreement between the two of you, it's not a court order, then maybe it's time to get one so that there is an actual order in place that could be enforced.
And so you're not so much at the mercy of the other co-parent as far as what the other co-parent is saying to the child, that's a bit more complicated. Number one, proving what's said when you're not there is nearly impossible because the other side can just deny it. And so going in and saying, you're doing this, you're doing that, and then they say no, you're just kind of stuck at that point.
What I like to do is focus on the child. [00:47:00] Okay? So if this is happening, obviously that's going to be creating confusion for the child, right? And also creating some problematic patterns for the child too. This like people pleasing and against somebody you love. Like very, very difficult psychological stuff.
So I would be looking to get some sort of counseling for the kid and then maybe the counselor can talk to the other parent about this stuff and how it's impacting the child. Or maybe those counseling records are then used to seek a modification down the road, but you need to try to get it out of just this, he said, she said, between mom and dad because you're kind of stuck without going anywhere.
And then the child is just suffer. So I prefer to try to get the child some sort of help. What are your thoughts, Billie?
[00:47:52] Billie Tarascio: I agree. I think these are the hardest cases. I've said this before and I've got, we've got clients in [00:48:00] both positions where they are parents that feel and are experiencing alienation and then the parent that is, that the judge has determined is alienating and therefore has taken the children away from them.
Either way is heartbreaking. So to me, what you've got is a very, very unhealthy situation that is going to be so bad for your children. And this is fundamentally about the relationship between parents and anything you can do to improve that sit. I love the idea of getting your children in counseling, but I also think that co-parenting counseling would be highly effective in these situations if at all possible. Many times in these situations, one parent might have a personality disorder, might be dealing with a narcissistic personality disorder or borderline personality disorder, and that is so hard on kids.
[00:48:59] Julie LaBenz: [00:49:00] Yeah, know. One other thing to be cognizant of is, you know, depending on the age of your child that children do manipulate and so, you know, you also have to take it with a grain of salt and really try to address the situation. I wouldn't just hear my kids say that and fly off the handle. You know, you kind of need to s okay, what was really said?
What was the context? What's going on here? And can you talk to your co-parent about it in an effective way outside of the ears of your child? As a first step, suggest the counseling. But really it's, if you have somebody who is dead set on making your child hate you, it's, it's tough and it's sad and I don't have an immediate resolution for that situation.
[00:49:50] Billie Tarascio: But one thing you can do is understand your children and understand their co-parent, your co-parent, and understand when you're being manipulated. Like [00:50:00] you, I, I, I, I have four kids and they go back and forth and I have an ex and I know him. So if my kids say something complaining about their dad, I usually know.
I usually understand what that means, and I can either feed into it or I can deal with it, you know, as if we lived in the same house. Because parents who live in the same house have disagreements and kids play mom and dad off of each other when parents live in the same house. You for the sake of your children's normalcy and development.
Like, if you can think about it in the same way where dad and I, we may not live in the same house or mom and I, we may not live in the same house. We are the parents and our children will try to play us. And, and if it's at all possible to be on the same page, like figure out a way to do it. And you know what else that does is it offers your kids such an amazing sense of security and stability that [00:51:00] they've lost now that their parents live in different houses.
And any time I can say to my kids, you know, your dad and I are really, we've talked about this and we really feel like it just, you can see like the relief. On their face. So just because you're not in the same house and you don't love each other romantically anymore, doesn't mean you can't figure out a way on key issues to get aligned.
Like if you can, I really feel like it offers real value to your children.
[00:51:34] Sarah Encarnacion: I loved that. That was amazing. Thanks. Do we want to do another question or two? You know, I have time. We got started a little late. Julie, if you have to go I totally get it. I've got
[00:51:44] Julie LaBenz: a few more minutes.
[00:51:45] Billie Tarascio: Okay, let's do a couple more questions cuz we've got a ton
[00:51:49] Sarah Encarnacion: I like this one. Do judges look at us as incompetent when we do go
[00:51:54] Julie LaBenz: in representing ourselves? In a way, [00:52:00] yes. Yeah. I mean, they recognize that you're self represented. You have to understand that you also have an enormous benefit and an advantage in that position because the judges usually wanna help you.
Yeah. Sometimes they bend over backwards to help you. Sometimes it can be very frustrating as a lawyer to see the judge helping the self-represented party so much. Mm-hmm. . So yeah, they might think that you're incompetent, but they want to help you. And so you've gotta remember that and try to utilize that to your advantage the best you can.
[00:52:40] Billie Tarascio: I've heard some judges say they prefer it when people are self-represented because then they get to run their courtroom the way they want to. Without the lawyers you know, advocating on behalf of their clients, they might feel like they're in a better position to determine the truth. So, you know, the, I think the judge is only gonna think you're incompetent if you show [00:53:00] up unprepared.
And incompetent. And, and you, you do have the ability to learn what is this hearing about? What is this case about? And show up and earn the respect of your judge. Without a doubt, I think.
[00:53:14] Sarah Encarnacion: What advice would you have for somebody who's representing themselves in the opposing party? Does have counsel? This is cough.
[00:53:22] Julie LaBenz: It's very intimidating, I'm sure. So I encourage you to see that you have more power in this situation than it feels like you do. Mm-hmm. , because you can be a real thorn in the side of this lawyer. Mm-hmm. , I mean, they can be a thorn in your side as well. But if you can actually establish a good dialogue with this lawyer, if they can actually help you in ways because they can draft the paperwork, like they can do some of the heavy lifting that can help move things forward.[00:54:00]
So obviously it's gonna depend on what lawyers on the other side, some people are nicer than others. But that is something I would be exploring from the get go. I would be looking to set a phone call with this person. We may talk for five, 10 minutes. It's probably not gonna be a long call, but just kind of feeling this person out.
Hey, what's it gonna take to resolve this? You know, where do you, you know, just kind of seeing what, what paperwork do you need? How can we work together? And then you're gonna know right away, is this going to be a relationship where I'm gonna be able to advocate for myself in a strong way? Or is this somebody who's just going to make this really, really difficult?
It is a tough road, but with the right lawyer on the other side, it actually can be a smoother experience. And again, I think your biggest advantage is to figure out what your case goals are. Cause if you're clear [00:55:00] on where you're trying to get, then you can actually start having some discussions to potentially get there.
But if you don't know and you're just scared, then no progress is being made.
[00:55:09] Billie Tarascio: Let's just do one final question.
[00:55:13] Sarah Encarnacion: So we're getting a lot of questions about what to do if you don't agree with the judge's orders. So maybe we'll just combine them.
[00:55:20] Billie Tarascio: Hmm. Yeah. This is a big deal. So you get the judge's order. What do you do? There's a lot of legal analysis that has to go on right now, which is hard if you're representing yourself first, you need to determine is the ruling that I got.
An actual ruling or do I just don't like something that he or she said? Like, did it make it into the ruling is the first question. Cause if it didn't make it in the ruling, it's not an order. It doesn't mean that they might not remember it and come back to it and be mad at you. But like, if it's not, it's not in the order.
It's not in order. If it's a temporary order, you [00:56:00] sort of have to live with it. For now, you don't have a lot of options, but you can determine what don't I like about it? Is it a clerical error? Is it a mistake? Do I, does it not reflect the record and I need to have the record fixed? Did they misunderstand something?
I mean, I think 10 outta 10 times you're not happy with the judge's ruling? With, to some extent, yeah. and then you need to determine like, is it appealable? Do I, do I do a motion to reconsider? Do I ask for clarification? Like what do you think, Julie?
[00:56:38] Julie LaBenz: Yeah, I think number one is reading the order and making a list.
What exactly is the problem here? Mm-hmm. . Mm-hmm. . And then of the things on the list, is it a typo? Mm-hmm. , is it they named the parties run? Like I've seen the judge flip petitioner and respondent and needed to correct that. So like the order actually made sense. [00:57:00] Yeah. So is it something like that where just the judge made a, a clerical error, like you said, a typo because then you could do what's called a, a motion to correct and look to correct that typo or that clerical error mistake.
But is it on the flip side, is it something about the substance? Is it that the judge ordered joint decision making and you think sole is better? Or the judge issued a parenting plan you don't like? The, that's more substantive and then that runs into a more complicated analysis. There is the option for emotion, for reconsideration.
It's really a roll of the dice. I sometimes have success with those, sometimes don't. You just don't know. And I don't know. It's hard to give advice on such a broad issue like that. I mean, really you need to see what the order is, see exactly what is being objected to, to give better options. But [00:58:00] not all orders can be changed.
Mm-hmm. . Mm-hmm. . Some orders you need to wait a year or so to even ask to change. Mm-hmm. some stuff you need to appeal to potentially get it changed. It's just, that's a real tough.
[00:58:16] Billie Tarascio: Which is why Julie and I are both such fans of negotiated outcomes, even imperfect negotiated outcomes is lower risk than going in front of a judge.
It's really, really, really risky to take your case in front of a judge, even though what we're doing is teaching you how to represent yourself,
So I think that's that's it for our live today.
The recording will be available on our Decode Your Divorce page and also in Win Without Law School's membership area. Make sure to head over to win without law school.com and get access to all of the materials that you're gonna need to really learn how to represent [00:59:00] yourself.