Court's ruling on divorce forms stokes legal debate

Thursday, February 7, 2013
In The Media

Houston Chronicle | Op-Ed By Harry M. Reasoner

There are almost 6 million people who qualify for legal aid in Texas. Legal aid organizations and pro bono providers (private lawyers who work for no charge) are only able to help 1 out of 5 of those who qualify and need legal help. Due to diminishing federal and state funding, even fewer poor will be helped in the future.

Our country was founded on the principles of freedom, liberty and justice for all. We make a promise every time we say the Pledge of Allegiance to provide justice for all. In Texas, we are failing to provide access to justice for the poor.

The majority of people who seek legal aid assistance need help with family law matters. Those who cannot be helped are forced to try to represent themselves in court.

Unrepresented litigants currently file more than 20 percent of all family law cases in Texas. The numbers are even higher - about 40 percent - for divorce cases.

Improving the adequacy of self-representation by the poor is one of the few avenues we have to increase access to justice.

No one questions that it would be better if all had lawyers, but there are not enough lawyers or funds available to make that happen. Even if all 90,000 lawyers in Texas took one pro bono divorce case, we could not meet the need.

For the unrepresented poor, access to the courts starts with access to forms. No case can be filed without one. No case can be completed without one.

In an effort to improve the unrepresented poor's access to the courts, the Texas Supreme Court has issued Divorce Set One. These are quality forms that are legally accurate and easy to use. They are narrowly drawn to help in the most basic situations - no children, and no real property, the parties agree on all issues. The court order approving Divorce Set One requires a court to accept them, if presented by a litigant that has properly used them.

Some Texas lawyers have opposed creation of official forms. Forty-eight states have used court- or legislative-approved official family law forms to aid the poor in necessary self-representation. Lawyers from some of these states voiced many of the same concerns that some lawyers have made about court-approved forms in Texas: that the forms couldn't be drawn in a way that was legally sound, yet simple enough to use without harming the litigant using them and that it would take business away from family lawyers. These concerns have proven to be unfounded.

These states, several of which have had decades of experience, report that forms are effective at increasing access to the courts while not causing harm to the litigants that use them. They improve judicial efficiency and economy by having a better prepared litigant with forms that comport with state law, rather than forms pulled off the Internet from a state with different rules. States supreme courts continue to promulgate forms because they work.

Divorce forms are already widely used by self-represented litigants. They can easily be found from a quick search on the Internet, on Craigslist or from many other sources. Many of these forms are not consistent with Texas law. Others are out of date, incorrect or too complex for use by self-represented litigants. 

Self-represented litigants also face barriers from some courts that simply refuse to accept any pleadings or form with fill-in-the blanks or check-boxes.

As to the concern that Divorce Set One will cause more harm than good, these forms will clearly not add to the level of harm that is presently suffered by people using forms that they have obtained on the Internet. They can only improve the current situation while providing a much-needed way for the thousands of people who cannot afford an attorney to access the court and resolve their legal problems.

As Texas Supreme Court Chief Justice Wallace Jefferson eloquently put it, "The Constitution requires the court to administer justice. This occurs not only by deciding cases, but also by establishing a judicial climate in which people who lack the money to hire a lawyer have a reasonable chance to vindicate their rights in a court of law." By approving Divorce Set One, the Texas Supreme Court has joined the overwhelming majority of states in our nation and taken an important step towards upholding that fundamental promise of justice for all.

Reasoner is a partner at Vinson and Elkins in Houston and serves as chair of the Texas Access to Justice