The Case Against Do-It-Yourself Divorce

Diana S. Friedman still cringes when she thinks about the Houston woman who got shafted on child support.

The woman and her husband had filed for divorce four years earlier without consulting a lawyer. The judge banged the gavel, and all seemed well—until their son turned 18 and the child-support payments stopped. Her ex-husband pointed to their paperwork, which clearly stated that he was off the financial hook. Had the woman consulted a family law attorney before the divorce, she would have learned that Texas laws entitled her son to support all the way through high school.

But it was too late. “If something goes wrong, in many cases, there’s no way to fix it after the fact,” says Friedman, a board-certified family law specialist with Diana S. Friedman PC in Dallas.

Friedman fears that more people might find themselves in sticky situations, thanks to a recent Texas Supreme Court decision that’s likely to make divorce in the Lone Star state even more DIY. The court approved a Texas-specific downloadable form for use in do-it-yourself uncontested divorces involving couples who have no children or real property. Judges may not reject the forms just because the couple is not using an attorney.

Hoping to avert a potential minefield for couples divorcing pro se, Friedman and Sherri Evans—immediate past chair and chair, respectively, of the state Bar’s Family Law Section—are spearheading a program called Family Law Cares. The Internet-based system will organize and coordinate attorneys looking for pro bono work, and match them with indigent Texans needing help with family law issues. Though still a work in progress, familylawcares.com is already live.

When the website is fully functional, attorneys will be able to use a drop-down menu to find cases in their counties. The needy applicants will have been interviewed and qualified by a legal-services provider.

When the high court’s ruling came down, the Family Law Section and several other legal groups objected.

The upside: Using the forms is cheap—less than half the cost of an attorney in most cases. That’s a strong motivator for the budget-conscious.

The downside: Cases that appear simple can quickly become thorny. Even with no house or land to divide, Friedman and Evans say, couples can have other significant assets, such as a pension. And since Texas is a community-property state, figuring out who had what before the marriage and what belongs to whom afterward is a daunting job for the legally uninitiated.

Around six million Texans qualify financially for free legal services. According to statistics for 2011, 58,000 pro se family law cases were filed, which represent only about 20 percent of total family law case filings. And Evans, managing partner at KoonsFuller’s Houston office, estimates that 70 to 80 percent of the overall need for pro bono work is in family law. Besides divorces, people need help with matters including custody and paternity.

“In criminal law, the court will appoint someone to help,” Friedman notes. “In family law, there’s no system to help. You’re not automatically entitled to a lawyer.”

However, she says, “Family law is the one area that impacts everybody.”

She and Evans don’t think a form is the answer.

Even if each member of the Family Law Section took a case every year, that would cover only 6,400 people. But if every state Bar member—all 90,000 of them—volunteered for just one case, the problem would be solved. Family Law Cares also plans to tap the skills of law students and young attorneys who have not yet landed a job.

One obstacle, Evans says, is that lawyers who don’t usually handle divorces can be uneasy taking family law cases. Family Law Cares tries to increase their comfort level by offering resources via its website.

“Pro bono litigants deserve an attorney, not a form,” says Evans. “It would be like a doctor that doesn’t give medical advice but rather gives the patient a blank prescription pad with no medication, dosage, frequency or duration.

“A form can have serious unforeseen consequences.”