Texas Supreme Court simplifies paperwork for some divorce cases

By Elizabeth Campbell

liz@star-telegram.com

The Texas Supreme Court is trying to make it easier for the growing number of people who want a divorce but can't afford an attorney to gain access to family courts by approving do-it-yourself divorce forms.

The new forms can only be used when the divorce is uncontested and the couple doesn't have child custody issues to settle or property to divide. They were recently approved by the state's highest court under its authority to oversee the administration of justice in the state.

The court will be taking public comments on the forms until Feb. 8, but officials don't expect many substantial changes.

Attorneys who practice family law, as well as district court officials, are not happy with the court's decision to use the simplified forms because they fear people may not understand the process of filing legal documents, which would create more work for county employees.

"We're disappointed in the court's decision," said Steve Bresnen, an Austin lawyer who spoke on behalf of the state bar's Family Law Section. "We think do-it-yourself litigation is dangerous, and we don't think these forms are going to protect people from hurting themselves [legally] when they attempt do-it-yourself lawsuits."

"Mistakes will inevitably be made using these forms," which apply a one-size-fits-all approach to very different individual issues, Bresnen said.

Six justices in favor

The justices who wrote the opinion in favor of the divorce forms said they are not applicable for all circumstances, but they will help the growing number of Texans who need access to the legal system but can't afford it, according to the opinion.

Six of the nine justices wrote the opinion favoring the use of the simplified forms. Forty-eight states already have similar documents available.

"While the court recognizes that obtaining legal representation pro bono or otherwise for every pro se litigant would be ideal, the resources needed to meet the demand are simply not available," the court wrote.

The justices also wrote that nearly 58,000 pro se family law cases were filed in Texas last year, and that if every family law attorney took one pro bono case, a substantial number of people still wouldn't get the help they need.

Justice Debra Lehrmann, a former family court judge in Fort Worth, wrote a dissenting opinion stating that although she commends the efforts to help low-income Texans, she is concerned that use of the forms could have unintended consequences.

"I believe that the Court's express endorsement will inadvertently increase the amount of pro se litigation in our family courts among parties with the means and the need to retain counsel. As the instructions the Court provides acknowledge, it is always best to hire a lawyer," she wrote.

Lehrmann said using the forms could also result in an unfair division of property because they exempt employment and retirement benefits.

District clerks unhappy

The new forms are also generating varying opinions from district clerks and advocates for better legal representation for poor Texans.

Tarrant County District Clerk Tom Wilder said he agrees that the new divorce forms mean that more people will claim that they are indigent when they actually have money to pay their legal costs. If indigency is granted, the county absorbs the court costs. In Tarrant County, the filing fee for a divorce with no children involved is $271.

Texas also allows no-fault divorces, meaning that the person filing doesn't have to give a specific reason for ending the marriage.

Wilder said he will likely send a comment to the court asking that the affidavit of indigency be removed from the packet that contains the divorce forms. He said his office contested 800 indigency claims last year and won more than half the cases.

"There is a big problem now, and it would cost the taxpayers money," he said. "I would rather handle these cases through pro bono clinics. We have plenty of lawyers willing to help. The bar has gotten the message that they need to make themselves available for more pro bono work."

But advocates for those who can't afford to hire an attorney said a weak economy and a tough job market have contributed to the problem, and that people needing help with legal expenses are often asking for help getting a divorce.

Sixty percent of people who qualify for legal aid in Tarrant County don't get the help they need because there isn't enough funding, according to Legal Aid of NorthWest Texas.

This article includes material from the Austin American Statesman

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