Texas Family Lawyers Fight Against Pro Se Divorce Forms

April 13th, 2012

In (my soon-to-be) home state of Texas, there has been a kerfuffle brewing for some time. Some want to offer pro se litigants standard divorce forms, so they can file for divorce without having to pay for a lawyer. As one might suspect, family lawyers oppose these forms. Of course, their rationale is that the forms are defective, and do not protect a pro se litigant’s interests the same way a lawyer could.

In fact, they looked at the form and found over 70 deficiencies!

A coalition of four family law groups — the State Bar’s Family Law Section, the Texas Family Law Foundation, the Texas Chapter of the American Academy of Matrimonial Lawyers and the Texas Academy of Family Law Specialists — examined the divorce forms and highlighted “defects” in an April 10 Response to the Report of the Uniform Forms Task Force.

Family Law Foundation lobbyist Steve Bresnen says some of the most important deficiencies involve a failure to require petitioners to state a court’s jurisdiction over a respondent who doesn’t meet jurisdictional requirements; and a misstatement of the law about what constitutes separate property. The response lists over 70 other alleged problems.

Bresnen says the “defects” show the Uniform Forms Task Force has “produced a set of forms that are so thoroughly defective it demonstrates they don’t really have the capacity to do this in a way that will protect the public from the very things we’ve been concerned about.”

The standard (and primary) rationale for occupational licensing–this is what the bar does here: limits filing of divorces to lawyers–is protection of the public interest. I don’t know anything about Texas divorce law, so I really have no opinion about these seventy errors.

But, query. If many litigants use these forms, wouldn’t it be safe to say that fewer lawyers would be hired? I wonder. Just wonder. If that concern, perhaps, animates the opposition to the forms. Especially in light of the fact that there are not enough Pro Bono lawyers to handle these pro se divorces.

In an April 6 report, the TAJC supports the creation of standardized divorce forms for indigent pro se litigants. The TAJC report notes it’s best for litigants to have lawyers and says it works to increase legal-aid funding and pro bono resources. But with six million Texans below the poverty line, those efforts only help 20 percent of indigent litigants.

“[E]ven if every lawyer were required to represent at least one pro bono client, we would still only be able to serve less than 40% of the poor who seek help from legal aid,” says the report.

The report notes other states with standardized forms report they increase access to the courts for the poor, improve judicial efficiency, and benefit lawyers by making pro bono work easier and attracting limited-scope representation business.

“There’s a huge group of poor people who have legal needs, and there’s never going to be enough lawyers to help,” says TAJC Executive Director Trish McAllister, adding that indigents are already filing pro se cases, and standardized forms won’t hurt them or lawyers.

So, I suppose the question is, would we rather have poor litigants who can’t afford lawyers, and do it by themselves with little guidance, or spend money on a lawyer they can’t understand; or poor litigants who use this form, and do it themselves–not as well as an attorney could, but better than they could themselves. I don’t know the answer to that question. Access to justice, and especially technology that enables non-lawyers to access the law, is only good insofar as it actually helps them.