In Texas and across the country, the debate rages about whether each spouse in a divorce in a straightforward, nonadversarial situation needs to hire a family law attorney or whether the couple could get divorced pro se. Especially when the divorce is uncontested, there is little money and property and children are not involved, many think that the pair should be able to file their own paperwork and proceed in court without incurring the cost of legal counsel.
The Texas debate
The Texas Supreme Court has approved a packet of court forms with instructions for childless couples that fall within the above scenario, and want uncontested divorces. This packet is meant for those who want "pro se" divorces - meaning those when the parties are not represented by lawyers - when the legal issues are not complex and less is at stake in terms of property and children.
The Supreme Court has said that the use of the forms is optional, but when used Texas courts may not refuse them. The Supreme Court has also stated that courts should attempt to proceed even when forms have "non-substantive defects."
Of course, the most obvious advantage is that a "do-it-yourself" divorce should be cheaper than to incur attorney's fees. Some people cannot afford lawyers, but even for many in the middle-class, a pro se divorce is financially advantageous. For those couples, savings must be preserved for life after divorce and spending a lot of money on legal fees may leave little left over to establish two, now separate households after divorce.
Some Texas attorneys have expressed concern that a divorce is not usually a legal matter that should be undertaken without a lawyer because mistakes, or ignorance of the law, may result in a less favorable or less fair divorce decree than might have been issued with the advocacy and support of experienced divorce lawyers.
Indeed, the legal issues in divorce can be complicated and the terms of a divorce decree will have permanent ramifications on the parties' personal and financial lives. Even in the kinds of divorces where the Texas forms can be used, even though the main issues - possibly alimony and the division of assets and debt (including retirement accounts) - seem straightforward, the combination of not understanding the law or court procedure, and not having an experienced lawyer overseeing the process, can result in a divorce decree with mistakes of fact or law, or that may affect one of the parties negatively for the rest of his or her life.
In addition, the involvement of an attorney may avoid problems with asset valuation and tax ramifications that may not occur to a party without the advice of experienced legal counsel. Finally, it is probably not wise to go through divorce without legal representation if there is a history of physical or emotional abuse in the family.
A possible middle ground
The use of approved forms at least in relatively simple divorce cases seems here to stay, mostly in the interest of those with little income. However, it is always best to get legal counsel if possible. Indeed, the approved form kit itself states that it is "always best to hire a lawyer."
At a minimum, a divorcing party can hire a divorce lawyer on a limited basis only to review the completed forms before their submission to court or to have a consultation in which the attorney can discuss the legal issues important to the particular couple's situation.
In general, the more complicated the family situation, both personally and financially, the greater the need of vigorous legal representation through the process.
Prepared by Matthew J. Hill, Managing Member of M. J. Hill & Associates, PLLC.