Despite widespread outcry among family lawyers, the Texas Supreme Court yesterday approved a set of pro se divorce forms for indigent couples with no children or real property. The high court will accept public comments about the forms through Feb. 1, 2013, and may modify the forms in response.
In explaining its decision, the high court wrote in its Nov. 13 order that it “is confident that these forms will be a useful tool in addressing the burgeoning population of litigants who cannot afford representation and are unable to obtain representation through a legal service provider.”
The order continues, “The Court is deeply committed to improving access to justice in Texas. Impediments threaten the integrity of the rule of law.”
But in a dissenting statement, Justice Debra Lehrmann wrote that she’s concerned the court’s endorsement of the forms will increase pro se litigation by people who can afford lawyers, and it may “lull people who could and should receive the benefit of experienced counsel into believing that the form will adequately protect their interests.”
The per curiam order says the high court reviewed the forms and feedback from the State Bar of Texas, the Bar’s Family Law Section, the Texas Family Law Foundation, the Texas Access to Justice Commission and the Texas Supreme Court Advisory Committee. The court analyzed “in every detail every substantive critique lodged against the forms” and revised them “to eliminate inconsistencies and simplify the forms.”
The court also talked about “policy issues,” writing, “While it is clear that forms will not work in every circumstance, the Court firmly believes that forms are an integral part of any effort to aid indigent litigants. . . . 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 order says.
The order notes that in fiscal year 2011, pro se litigants file 58,000 family law cases, and even if all the 4,400 members of the Bar’s Family Law Section took one pro bono case each year, “tens of thousands of litigants would remain unserved each year.”
A separate dissent by Johnson, joined by Justice Don Willett, joins in the per curiam opinion but it objects to the forms noting they are approved by the Supreme Court. Johnson explained in the dissent, “My concern is that by annotating the forms as being approved by the Court, the Court has effectively committed itself to maintain the forms.”
Johnson wrote the court has limited resources and should allow its Uniforms Forms Task Force, which drafted the divorce forms, to also maintain them.
Reacting to the news about the high court approving the forms, TAJC Executive Director Trish McAllister says, “We are extremely delighted. We are so grateful and thankful to them for taking this bold step and the unfailing, unflagging commitment to access to justice. We recognize the forms won’t be for every single person out there but it takes a huge step towards helping the thousands of people who cannot afford a lawyer and will never be able to get one through legal aid or pro bono.”
But Austin solo Steve Bresnen, who lobbies for the Texas Family Law Foundation and is speaking on behalf of the Bar’s Family Law Section on the divorce-forms issue, says, “The court has gone down a dangerous road with do-it-yourself litigation that will affect people’s most important interests including retirement and property. We think it’s not in the service of the public to do that.”
He adds that he’s happy the dissenting opinions “have recognized there are very serious interests that are at play here that will be negatively affected by these forms as adopted by the court.”
-- Angela Morris