Some Family Lawyers Oppose Creating Divorce Forms
Texas is one of only 13 states in which couples cannot simply fill out a form to begin ending their marriage. The Texas Supreme Court is on the verge of changing that, but some lawyers are trying to put a stop to what they say could be an oversimplification.
Last year, the Supreme Court — the state's highest civil court — created the Uniform Forms Task Force with the goal of making it easier for Texans who can't afford lawyers' fees to have access to the courts. Now, the task force has created divorce forms that, once approved by the ...
Comments (8)
Rick Jacobi
As a member of the State Bar, I don't object to this project as I believe that it will help those who cannot afford an attorney to have access to the courts. On the other hand, from personal experience, I know how a "simple" divorce can get balled up if the petitioner isn't familiar with all the legal nuances or circumstances surrounding the ending of the marital relationship. On at least once occasion, I know of a woman who used prepared forms from a service to file for and obtain a "simple," non-contested divorce. It wasn't until a year or so later, after the divorce was granted, that several issues related to credit and income taxes crept up. In retrospect, they were issues that a competent family law practitioner would have caught at the outset. Resolving them after the divorce was granted was much more difficult and much more costly. I fully support minimizing legal expenses, especially for the poor. But, at the same time, I am convinced that no one should purchase real estate, get divorced or do estate planning without the assistance of a competent attorney.
Steve Fischer
I'm a state bar director (Steve Fischer) and witnessed the entire debate till i finally "called the question".
The forms would work only for no children,no property divorces where the parties have already been living apart. When kids are involved and 30 page decrees, the parties who are often distraught and may not be educated in legalese, need COUNSEL.
The bar has net assets over liabilities of $36,345,000 and quite a bit of this is unrestricted. Earning only .2% annually perhaps we ought to try a pilot project to offer help to attorneys who will assist all these people.
This was a nice step for the state bar who in the past has always ignored family,criminal. solo or small firm attorneys. The bar elections for Spring 2012 will feature director candidates who are sensitive to all types of practice and I've recruited candidates in 9 of the 10 bar districts up for election.
As for the presidential candidates -they are still picked from behind closed doors by a select committee who always picks other bar cronies. One step at a time.
Bill Carson
I am a family lawyer. I practiced in Texas for 15 years. In 2010, I moved to Colorado.
Colorado has all of the self-help forms being contemplated by the Texas Bar. These forms are used by two groups of people: those who can't afford to hire an attorney and those who think they are smarter than attorneys. Up to 80% of divorces here have at least one pro se party. This has caused more problems than you can imagine. Self-help forms don't give access to justice; they deny justice. The self-represented know just enough to get themselves into trouble. In most cases, it is easier to do it right the first time than to have to fix something that has been screwed up by a layperson who didn't know better. In the end, the judges and clerks have to give legal advice in order to shepherd the cases through the system.
The judges and lawyers here seem to agree that it is better for everyone when at least one party is represented by counsel: the parties are better off and the children are better off. The solution is not the adoption of do-it-yourself forms; the solution is finding ways for people without means to be able to access good legal advice. The solution could also involve streamlining the process, so that there aren't as many procedural hurdles between filing and finality.
And a final note about forms: Texas already has excellent divorce forms. It is called the Texas Family Law Practice Manual. The forms contained in the Family Law Practice Manual are uniform; they are understandable; they track the law; and their language has been interpreted by the courts. However, these forms weren't designed for the kind of fill-in-the-blank, check-the-box "simplicity" that the advocates.
Patricia Baca
I was at the meeting and I saw Family Law attorneys coming together for better ways to help poor litigants than throwing forms at them they do not understand. The problem with providing legal aid to the poor is more complex than providing forms. Unfortunately, the head of the Texas Equal Access to Justice Foundation is a $900 an hour tax attorney who does not practice family law.
I have seen women divest themselves of their share of their husband's retirements because they did not fill out a form properly.
Someone can already fill out a form and get a divorce in Texas, the question is will the rights to their child support, children and property be properly protected.
Having the Supreme Court approval on these forms will lull the unwary litigant into a false sense of security that he or she is doing the right thing by avoiding a lawyer in a complex legal matter.
Bill Carson
Patricia Baca wrote, "Unfortunately, the head of the Texas Equal Access to Justice Foundation is a $900 an hour tax attorney who does not practice family law. "
That is precisely the problem. The big law firms like Vinson & Elkins don't practice family law and they don't want to get their hands dirty assisting the great unwashed clients who are served by agencies such as Lone Star Legal Aid. I recently read about one "tall building law firm" which set up Skype so that their associates wouldn't have to leave the building in order to counsel poor people with legal needs. If you want to know how to best serve the poor while still delivering justice, then you'd better get some lawyers on the committee who have worked in the trenches, from both urban and rural areas. You'll find many lawyers who scrape by on less than what Harry Reasoner pays his legal secretary, but who find creative ways to help people within their means.
Norma Bazan
I do not believe that the proposed "one size fits all" family law forms will assist the community at large and may possibly cause irreparable harm. I believe I fall into most of the categories relating to this subject as I am a family law attorney; was a court coordinator for a family law district court in Tarrant County for over 8 years; was a board certified paralegal in the area of family law through the State Bar of Texas; was a secretary for a family law firm for over 10 years; was raised in a family household that was categorized as "below poverty level"; and whose mother was a victim of domestic violence. I believe this gives me a unique perspective regarding these proposed forms. These forms would not have helped my mother during her divorce to my father as he was the abuser and controlled the family finances. Further, she had a sixth-grade education and was not capable of understanding even simple legal forms. She was not allowed to inquire into my father's income, much less whether he had retirement through his employment and had no understanding of her spousal rights under the State of Texas. What she needed was "assistance" from an organization that would help her protect her rights not a "form". Times have not changed and there are too many women in Texas who fall into the same category as my mother. We definitely do have indigent people who need "assistance", however not through forms but rather through programs and through education. I believe these forms will most likely be utilized by litigants who are not categorized as indigent; who most likely will have community property; who will need spousal support; who will need child support; and who will believe they can fill out these forms without the assistance of any type of legal clinic or attorney. To provide these litigants with "fill in the blank" forms that are stamped with the "seal of approval" by the Supreme Court of Texas, will create more harm than good in that if these forms are incorrectly completed, there may be no adequate remedy at law to correct the error.
Zoe Meigs
This article reads more like an op-ed piece. I am a family lawyer who attended the meeting of the Bar in Bastrop last week. Twenty of my colleagues from Tarrant County were also present. We are not motivated by saving our own livelihoods. My colleagues and I genuinely care abour our clients. What is troublesom about this forms project is that it was started without having a clearly defined problem. Ask Ms. McAllister or Mr. Reasoner for the statistics supporting their professed need for these forms and you will be met with anecdotal evidence or unreliable extrapolations from other state's experience. I would like to know how many people Ms. McAllister talked with in other states who were real practicing attorneys and not just the other court administrators, judges and court peronnel she meets at conferences. It is disturbing to me that a project that has cost a lot of money (that my bar dues and the donations of lawyers paid for) was started based on the perceived rise in the number of self represented litigants in the courts. Yes. I would agree there are more now than a few years ago. I do not agree, however, that the people who started this project have enough evidence to support what I see as a project that should have been subjected to a bar referendum before it was funded. Also, I keep going back to the main question I have about this whole emphasis on family law forms to improve access to the courts or justice. What's the benefit to society of faster, cheaper, easier divorces? More divorces and faster. That is not something any of us should be working to achieve. Let's be clear here: the underserved are not without access to many., many free programs funded by tax dollars and attorneys who generously volunteer their time. The supposedly underserved poor have the Attorney General child support division as well as the Domestic Relations Office (in Tarrant County) that will help them get
child support for their children. There are also numerous free shelters and programs for anyone who is a victim of domestic violence. So who is left? Those underserved poor are people who want out of their marriage. People who want to split their family. So is that something the Texas Supreme Court wants to promote? Divorce is not a product that the law librarian or court clerk can sell you. Divorce is a process that should and does take time to accomplish. It requires the representation of an attorney. We are not making it complicated. It is complicated. Other states' projects are also pushed through by court administrators and state supreme court justices who are trying to look like they are improving access to justice. Those administrators and justices, for the most part, haven't represented a client in a courtroom for decades. They are out of touch except with other court administrators and people who want to make courts more efficient. I contend that their quest for efficiency, including these forms, is misguided and creates dangerous traps for the unrepresented. Please try to be less biased in your reporting this issue in the future. THere's more to come as the access to justice folks and Texas Supreme Court try to put more of their plans into place. We will be pushing back for our clients, for the unrepresented and yes, for our own right to be able to earn a living.
Dick Price
I was also at the meeting last Friday. The opposition to the current plan for forms was overwhelming. The article quoted almost all of the few speakers in favor of the forms project, but did not convey the strength and breadth of the opposition. The opponents were family lawyers and family court judges from all over the state. The proponents were not. A fundamental problem with the project is that it seems to treat divorces as a commodity that can easily be distributed on a "one-size-fits-all" basis. While the proponents justified the project based on the needs of poor families without property or kids, there was nothing included to limit the use of the forms to those groups. Unfortunately, divorces are much more complicated than the proponents seem to realize. There would be nothing to prevent the misuse or misapplication of the forms. There are many people who can afford attorneys, but don't want to use them, and they would be very tempted to use the approved forms. The results will probably be undivided assets, loss of property that could have been awarded and real estate problems, among other things. Children could also be left out of the proceedings by unrepresented parties.
As to the need for the forms: While I doubt that there are "tens of thousands" of unrepresented people in Texas, I'm sure there are more people trying to go to court without an attorney, but that doesn't mean that the answer to their needs is these forms. I agree with the great majority of speakers and writers that a better system to provide legal advice is a better answer than to hand people "approved" forms and let them figure things out on their own.
Finally, this is not a battle by family lawyers to try to avoid losing business. Some of the proponents tried to make the family lawyers seem greedy and self-centered and implied that the lawyers thought the clients without funds would be good clients. On its face, that's a ridiculous argument. Poor people without significant property cannot afford to pay a lawyer a significant fee. It may be hard for the administrators pushing this proposal to understand, but the family lawyers and family court judges really are concerned about helping the truly needy, but in different ways. For the people who can afford a lawyer and just don't want to do so, they are the ones who later discover overlooked assets, unenforceable child support or visitation provisions or real estate problems. I have practiced family law for over 35 years. I knew a lot of the speakers and I know their hearts are in the right place. The family lawyers and judges want to work with the reformers to come up with a system that will really serve the best interests of the clients.