The Pros and Cons of a “Do it Yourself” Divorce
“Do it yourself” became a common phrase in the English language around the 1950’s, and originally referred to home improvement projects individuals could complete without hiring a professional. Today, a multitude of magazines, websites and even television networks are devoted to “DIY” projects, which include a scope of tasks much greater than home improvement. While there are certainly some benefits to the do-it-yourself idea, an individual should consider whether “DIY” has its limits.
This summer, the Texas Supreme Court Advisory Committee will consider whether court-approved forms for attorney-free divorces are a positive idea or a recipe for disaster. The proposed forms in an attorney-free divorce include: divorce instructions and a divorce petition for couples with no children, the respondent’s answer to a divorce petition, a waiver of service form, a final divorce decree form, and forms for an affidavit of indigency or military status. These forms would be available to the public and would allow pro se litigants a method for obtaining a divorce without hiring a lawyer. The controversy over the use of these fill-in-the-blank legal forms for divorce cases began in Fall 2011 when the State Bar of Texas’ Family Law Section raised serious concerns about the implications of such forms on Texans’ legal rights.
The Texas Access to Justice Commission (TAJC) and Texas Supreme Court’s Uniform Forms Task Force are in favor of these forms, arguing the forms will help people, especially low-income individuals who cannot afford lawyers, to obtain divorces on their own. They also note these court-approved forms will be a better tool than the forms from the Internet and elsewhere, which citizens are already using anyway.
On the other hand, the Family Law Section and the Texas Family Law Foundation argue the forms could hurt the interests of both lawyers and the citizens of Texas. They contend the forms may harm the legal interests of those who use them to file for divorce without legal knowledge, that users will not be limited to low-income Texans, and this trend might expand into practice areas other than family law. The Section is also concerned that TAJC has taken the mission of affordable legal service too far in implementing a “seven-point plan” to help pro se litigants, including do-it-yourself kits for handling divorce, property division, child custody and support, and other family law matters.
In addition to concerns surrounding potential harm to citizens, these organizations are also concerned about the forms’ effects on the livelihoods of solo practitioners and small-firm family lawyers. Family Law Section chairman Thomas L. Ausley expressed these concerns in a letter to the Texas State Bar President stating that, “[T]hese efforts are being undertaken without the Bar’s leadership, much less its approval, while being funded by the mandatory dues paid by members of the Bar.” Furthermore, he stated, the TAJC “intends to take the same kinds of actions regarding other areas of law[.]” “Rather than limiting its mission to providing legal services to low-income Texans,” Ausley wrote, “materials produced by the Commission state explicitly that some of its actions are intended to force Texas lawyers to engage in ‘new business models.’”
After a two-day meeting on April 13 and 14, in which the Supreme Court Advisory Committee reviewed and suggested changes to the Uniform Forms Task Force’s draft forms for divorces, the Advisory Committee chairman Chip Babcock said the general consensus on the committee is that standardized pro se divorce forms are a good idea, but some “tweaks” could make them better. Currently, a committee within TAJC is being formed to research ideas for changes to the forms and the Texas Rules of Civil Procedure to eliminate some of the concerns associated with a “Do-It-Yourself-Divorce.”
According to Lynn Wilson Lupton, family law attorney at Smith Debnam Narron Drake Saintsing & Myers in Raleigh, North Carolina, basic forms can be helpful to pro se litigants, but these individuals should be directed to additional resources to alleviate some issues typically associated with self-representation. Lupton is candid with clients about the right to represent oneself, and warns of the disadvantages associated with a lack of knowledge about how the legal system works, particularly when one’s opponent is represented by counsel. She says particularly in family law cases, where matters are infused with emotion, lawyers serve as an additional “check” on client decisions to ensure claims are not frivolous. She also notes that while pro se litigant forms may increase an individual’s ability to initiate a lawsuit, the forms restrain judicial efficiency because as fewer pro se cases settle, trials must be held, and these cases lack a lawyer to draft motions, orders, or perform similar tasks to facilitate the trial process.
Estimating that roughly half of the domestic cases in Wake County have at least one pro se litigant, Lupton acknowledges the need for some aid for pro se litigants. While North Carolina courts have not supplied uniform “do-it-yourself” divorce forms, the state requires that AOC forms (provided by the North Carolina Administrative Office of the Courts) be used by both pro se litigants and lawyers to file certain pleadings in domestic cases. Wake County has local rules and forms to be used by all litigants, whether they are represented by an attorney or not, but Lupton says these forms can be complicated as they are not necessarily designed as a “do-it-yourself” type of form. She advises that although these forms may be helpful to pro se litigants, some additional assistance would also be beneficial.
Similar to suggested alternatives in Texas, Lupton proposes a referral system that would offer low-cost or limited legal help to pro se litigants. This type of system would allow a consultation or brief meeting between the lawyer and the client in exchange for a finite fee paid to the lawyer. This system would address some problems associated with self-representation and would also lessen the threat of lost of business that “do-it-yourself” forms pose to lawyers. Alternatively, Lupton suggests offering optional training to a litigant who uses standardized forms before he or she proceeds to litigate a case. This type of training may provide basic knowledge of courtroom procedures and the legal process.
While the heated controversy over these forms will likely steam well into the summer months, the ultimate question seems to be not whether the forms will be approved, but what changes the Advisory Committee can make to minimize concerns with these forms. Although pro se representation is not only a viable option, but also a legal right, there are undoubtedly benefits to reaping legal advice from an attorney. Texans may add gardening or sprucing up the patio to their summer “DIY” list without hesitation, but even with fill-in-the-blank forms, an attorney-free divorce has the potential for a fair share of problems.