March 5 (Bloomberg) -- A controversy over divorce procedures in Texas is calling attention to a profound shift in the way Americans in all 50 states exit marriage: They’re going to court on their own, without lawyers.
Few courts keep statistics, but small studies and local estimates suggest that self-divorcers now make up 40 percent to 70 percent of the total, depending on the jurisdiction, with the highest numbers in places with relatively large populations of poor people.
Naturally, this is causing a lot of chaos at family courts, and extra work for clerks who are called upon to help multitudes of legal novices, often in the pangs of marital separation, work through the process.
The Supreme Court of Texas, like courts in dozens of other states and counties, wants to make things easier by providing do-it-yourself petitions, summonses and other forms needed to manage a divorce. Texas family lawyers are fighting back, arguing that the forms may not provide adequate help, that marriages are best dissolved with a lawyer’s advice and assistance.
We have nothing against lawyers. We know and like them. And we do not dispute that they can be extremely helpful in divorce: In situations involving long-married spouses who have children and real property, they’re essential. But judges know that the significant share of marriages are simpler than that. In any case, many people who want divorces can’t afford lawyers’ fees.
Budget cuts in recent years have limited the availability of legal-aid lawyers. They now rarely help people with divorce, except in cases of domestic violence or child abduction.
This is why the Texas court’s solution is sound, and should be taken up by every other jurisdiction that hasn’t already created fill-in-the-blank forms.
Lawyer-free divorce is not ideal, but divorce rarely involves ideal circumstances. Marriages do split apart, however, and our courts have done well to remove unnecessary barriers to legal dissolution. Until 1969, when California got the ball rolling on no-fault divorce, one spouse always had to sue -- accusing the other of inflicting some harm such as adultery, abuse or abandonment.
No-fault divorce didn’t raise divorce rates. Those began rising in the 1960s and 1970s -- probably as a result of cultural changes and increasing mobility, scholars say -- before states widely adopted no-fault laws. Since 1981, national divorce rates have been stable or falling.
There’s no reason to fear easier self-divorce will harm the institution of marriage or contribute to the increase in single parenting. Studies and observations of experiences in the 36 states that already have self-help divorce forms show that the main reason people represent themselves is that they can’t afford high lawyers’ fees.
Couples who do not divorce because they can’t afford it still split up. And they still find new partners. They are, however, prevented from remarrying.
A study in the early 1990s of self-divorcers in Maricopa County, Arizona (a jurisdiction that pioneered do-it-yourself divorce forms), found that they tended to be relatively well-educated and younger than people who employed lawyers. They also ended up relatively well satisfied with their divorce and the legal process.
A more recent study, of more than 500 divorces initiated in 2005 in Waukesha County, Wisconsin, confirmed other observations that divorcing spouses tend to know when they do or don’t need a lawyer. The roughly 60 percent of spouses in the sample who hired lawyers were for the most part in situations where there were children, the marriage was relatively long and the husband had a higher income than the wife.
In cases where both spouses used a lawyer, divorces took nearly four months longer than they did for couples where both sides represented themselves, perhaps because the cases were more complex.
Rarely did one spouse, but not the other, have a lawyer.
Waukesha County courts provide laypeople with do-it-yourself divorce forms that -- like those in California, Oregon and many other places -- are written in plain language an average high school student could understand. Users check boxes to show the court, for example, whether they have children or have lived in the county long enough to qualify for filing a divorce there.
The simpler a state’s divorce laws, the simpler its forms can be. They should be available in the variety of languages used in the state or county.
Ideally, users should be provided some guidance -- short of legal advice. The Superior Court in Maricopa County, for example, has several centers staffed by people familiar with the courts who, without giving legal advice, help self-filers navigate the forms and demystify the process. Video tutorials can do the same job.
While they’re at it, courts should also provide do-it-yourself forms for other simple legal procedures, such as name changes, landlord-tenant disputes, and uncomplicated probate and bankruptcy cases.
In Texas, the court has signaled its intention to move ahead with self-help forms, despite the lawyers’ objections. We trust both sides will be better off with the new system.
Rather than worry about losing business, many lawyers in other states have learned to take advantage of self-representation by “unbundling” their services. The lawyer agrees to work on a piecemeal basis, handling specific tasks such as drawing up the property settlement or making court appearances. The client does the rest of the paperwork alone.
This business model addresses the reality that many divorcing spouses either don’t want or can’t afford to pay a lawyer a retainer to represent them start to finish. Court-sanctioned do-it-yourself forms make it possible.
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