Fran Brochstein - Mediator & Attorney in Houston Texas
Monday, February 11, 2013
My opinion on the proposed Do It Yourself Divorce Forms
Here is a recent article on the proposed Texas Supreme Court handing out free divorce forms.
My comments will follow this article:
Divorce forms will burden lower courts with teaching litigants the legal system
By Diana Friedman | February 8, 2013 | Updated: February 8, 2013 8:02pm
By approving forms last year that encourage do-it-yourself divorces, justices of the Texas Supreme Courtthought they were helping the indigent population of the state while reducing courtroom logjams.
What the court actually did was to isolate our poorest residents at the most difficult moment in their personal lives. Armed only with forms they are not trained to understand, they can only hope the process will not adversely affect them and their families. At the same time, the justices place an even greater burden on the lower courts to guide an increasing number of people through "pro se" divorce cases.
A recent incident in a Houston civil court serves as a glaring example of the danger faced by indigent Texans when they attempt a DIY divorce.
The judge thought there was something familiar about the woman representing herself to prove up her divorce. The judge remembered her from a Child Protective Services case, and that she had children, but the woman checked a box on the form indicating no kids.
"Yes, I have three children," responded the woman. "But the form says how many children are involved, and I've been careful not to involve any of them in this divorce."
Only the judge's good memory kept the woman from a mistake that might have required her to come back to court to assure her child-custody rights. The judge in this case had to stop proceedings to explain the problem and set the record straight. In many urban areas, the courts have nearly ground to a halt under the pressure of nonlawyers trying to handle their own cases. Explaining the legal system to pro se litigants inevitably falls on judges and their clerks. And it slows the civil system down for everyone.
Proponents of DIY divorce say forms have been available from a variety of sources for many years, but the Texas Supreme Court has never officially sanctioned forms before. The fear is that an increasing number of people will attempt the DIY model because they believe the Supreme Court is looking out for their welfare.
Family lawyers in this state know that Texans, poor or otherwise, need lawyers, not forms, and this is at the heart of the disagreement between those who want to provide attorneys in this instance and the people who believe people can divorce with forms.
The debate has sometimes gotten nasty. Forms advocates say it's an instance of greedy divorce lawyers not wanting to cut off a potential source of business. But I don't know any family law attorneys looking for clients who can't pay for their services. And no one thinks state government is going to pay for this litigation. Our interest is in doing things right the first time so the court system operates smoothly and efficiently.
Our solution is a project called Family Law Cares, which is working to provide pro bono legal services to that indigent population.
Statistics from the Texas Access to Justice Commission indicate that 58,000 people qualified for pro bono legal services for the poor in 2011, and the majority of those were for divorce and other family law cases. Only about 20 percent of those eligible were served, but that's not for lack of attorneys. The Family Law Section of the State Bar of Texas includes about 6,000 attorneys, but the entire State Bar has more than 90,000 members.
We are working to organize Texas attorneys in a systematic fashion, using effective communication techniques and technology, to enhance our pro bono initiatives. Most family lawyers handle some divorce cases pro bono. Our goal is to have the family lawyers train as many attorneys as possible from other practice areas to handle rudimentary family cases. We will also include the thousands of law school graduates who need courtroom experience to help them get a job, as well as family law clinics in most of the state's law schools.
We know that bringing pro bono attorneys together with indigent clients is the combination that works. Even the Texas Supreme Court, in approving the use of forms, said, "… the Court recognizes that obtaining legal representation, pro bono or otherwise, for every pro se litigant would be ideal ..."
Dallas family court Judge Dennise Garcia was quoted in Texas Lawyer at a recent legal forum, saying, "I think trying to solve the pro se problem with forms is a little bit like trying to solve hunger by distributing recipes. We have lots of forms in the law library, and those become train wrecks. ... It just doesn't make any sense without having the education or the knowledge."
We believe that by relying on forms, officials are simply throwing up their hands at the state's inability to address the problem. If we start with forms, then forms will be the predominant method of divorce for the poor, and everyone will suffer. If we decide that people deserve real, live attorneys, some may still use forms. But the predominant method will be real legal work that can avert disaster.
I sold Do It Yourself Kits for over 10 years to try to fill the need that I saw in Harris County. I finally quit selling them for a variety of reasons. Some of those reasons were:
1. The people that wanted the DIY kits had extremely complex cases that did not "fit" and they need an attorney. For example, they needed a protective order and these DIY kits were not designed for this type of case.
2. People did not keep appointments. One day I made 6 appointments and not one person showed up. I had confirmed all appointments the day before. This was very frustrating.
3. People came in & met with me for an hour. They did not have an agreement. They wanted to complain, but they had said on the phone that everything was agreed and ready to go. In the office - they agreed on nothing. They wasted my time & their time.
4. People came in & did not want to pay for my kit. They brought in some kit they had purchased off the internet & they wanted me to "fix" it for free. I can't fix garbage. I refused to fix it. They wasted their money & now they expected an attorney to fix it for free. The judge had already refused to sign the "junk" they had purchased. They were shopping for a free attorney.
5. The people could not read or write. They could not follow simple instructions. They needed an attorney to help them. They did not have a middle school education. A DIY kit was not something they could fill out even with an attorney assisting them.
6. The people did not have the required information to fill out the forms. They did not know where their spouse was to complete their divorce. They could not notify their spouse that they wanted a divorce. The judge was not going to finalize their divorce in Harris County Texas.
7. The people only had enough money to begin their divorce. I prepared the initial paperwork and told them how to go to the courthouse and file it. They were to return later when the waiting period was over and when they had saved enough money to finish their paperwork. I never heard from them again. I can only assume that they perhaps reconciled, never got the money and stay married, or they found someone else to finish their divorce.
On the other hand, one man liked me so much that he used me 3 times for his divorces. I prepared a quality divorce product that I was ashamed to put my name on. I sold the people all of the forms that they needed in order to finalize their divorce including all local and state forms and the sheet to read to the judge. I included a map that showed the best parking lots to park in and how much they charged. I included a "how to behave in the courtroom check-list".
Only one lady ever complained about my kit -- she lied to me about not having children & the judge caught her in her lie & she wanted her money back -- I refused because she lied to me to save money. She still had a divorce on file at the courthouse -- so she only needed to modify her petition and prepare a new waiver and decree but she did not want to pay more money.
I quit selling DIY kits 4 years ago when my mom broke her hip & people consistently quit showing up for their appointments. It was not worth the hassle of the 75% no-show rate. When the no-show rate got to be that high I decided it just was not worth the effort any longer.