Analysis: Cash-strapped and out of love? Do-it-yourself divorces a growing trend

This article first appeared in the St. Louis Beacon, Jan. 30, 2013 - It is 11:20 a.m., on a Thursday two days after Christmas. While many courtrooms are quiet over the holidays, Judge Dennis Smith, of St. Louis County Circuit Court 21, Division 40, is handling some of the last pro se divorce cases his docket will ever see.

The would-be divorced, who have been waiting since 10 a.m. (he was busy with his new criminal caseload) are not aware that this is one of Smith’s last days on the docket that he helped to create. Judge Sandra Farragut-Hemphill officially took over the pro se docket on Jan. 2. Pro se cases are those in which people represent themselves.

Smith appears, and the names of the first litigants are called. A husband and wife approach the docket. Smith asks them the requisite questions: Do they think the marriage is irretrievably broken, have they been citizens of Missouri for the past 30 days, is the wife reasonably certain that she’s not pregnant? (Missouri law forbids divorce if the wife is pregnant.) They answer yes to all the questions. 

He reviews their incomes and asks them if they can support themselves independently. They answer yes. Neither earns more than $2,500 a month. They have no children from the marriage, so child support isn’t discussed.

After a few more questions, he pronounces them divorced.

Source: Judge Dennis Smith — St. Louis County; Office of State Courts Administrators

The exes walk out of the courtroom together. “That was easy!” the ex-husband whispers to another petitioner as he exits.

Rise of DIY divorces

It wasn’t always so easy to get divorced in St. Louis County.

Since October 2002, when Smith began to run the pro se family docket in St. Louis County Circuit Court, the divorce forms that he created (and later programmed in Adobe Acrobat) have become the standard forms for do-it-yourself divorce statewide. (They are available for free at Representing Yourself in Missouri Courts.) Litigants representing themselves have become increasingly common and expected in family law courts across Missouri. By his own count, Smith disposed of more than 6,000 divorces. “Dissolutions are the most common thing people appear pro se on,” he said.

However, Smith and Judge Elizabeth Hogan, who oversees a pro se family court docket in the city's Circuit Court, both admit that while the process does help thousands of people to get divorced, it is not ideal for all divorces, particularly complex or contested cases.

Lori Levine, chair of the Missouri Supreme Court Committee on Access to Family Courts, puts it more bluntly. “If you have property or children, get a lawyer,” she says, although she concedes that “there are still people with primarily economic reasons who are unable to afford a lawyer.”

Smith’s own statistics bear that out: “59.2 percent of petitioners make less than $30,000 per year, and 75.6 percent make less than $40,000 per year,” he said. While 80 percent of petitioners are lower income, 20 percent “just don’t like lawyers,” he said.

The Missouri Supreme Court Committee on Access to Family Courts was formed in October 2002, with Smith’s leadership, to help courts across Missouri accommodate the rising tide of DIY divorcers.

“The committee was designed to assist in providing access to justice, and to assist the courts and clerks in dealing with pro se litigants,” said Levine. The committee found that divorce was one of the most common types of DIY litigation. Among other things, the committee helped standardize the forms and educate court clerks and judges about pro se litigants.

Although any divorcing couple can use the forms and file pro se, the system was set up to serve those without children or property, a history of domestic violence or other problems.

“It was intended to serve the under-resourced who did not have complex issues of domestic violence, custody or property,” says Susan Block, who was a judge in St. Louis County for 25 years. She remembers working with Smith to create the pro se docket in 2002.

Block, Smith and other judges noticed that people filing pro se often omitted necessary information or filed incorrect forms, wasting time and money, and frustrating judges and court clerks who by law could not provide legal advice.  Many pro se litigants had bought legal forms from online businesses promising easy divorce, and often those forms were incorrect, further gumming up the court system.

“There was nobody to even give them a guidebook for two poor schnooks who wanted to get divorced,” said Block. “Some of them didn’t even have kids.  Maybe they didn’t have any property.”

Smith agrees. “It was a response to people just coming into the courthouse,” he said.

“We decided to set up a pro se court with one judge,” said Block.  Smith authored and revised the pro se forms, which were initially available in packets at the courthouse, and later put online.

“He was the only person willing to take it on. He made a really big contribution,” said Block, especially considering that pro se family law is not the most glamorous judicial assignment

“The average judge would consider a pro se domestic docket having a couple of stripes taken away from him. Domestic law is not considered highbrow law, but there can be a lot of complexity,” she said.

Not for everyone

Tom Weber can list the types of divorces that are not well served by the pro se process. Weber manages mediation services for the St. Louis County Family Court and checks every parenting plan that is submitted. “In our developed skills, we have never dealt with property and child support,” he said.

Here are some warning signs that hiring a divorce lawyer may be the best call:

* Complex property division

Although detailed, pro se divorce forms don’t guide couples on one of the most contentious aspects of divorce: defining and dividing marital property.

One common problem is people’s attempts to divide pensions and real estate.

“The biggest mistake people make is not listing property or debt,” Smith said.

Even if couples do list everything, those who are splitting pensions and 401Ks must have an attorney write up a legal document, a Qualified Domestic Relations Order (QDRO), to divide funds.

“When you start getting into tax consequences and QDROs, and real estate and banks, the attorneys have people in their firms who specialize in those areas, and so they are qualified to say, look, you can agree to let her have this pension and you get this and you get that because they’ve valued it.  I’m not that person,” said Hogan.

Even Jay Fiske, a family law attorney who teaches a free class for St. Louis about how to fill out pro se documents, recommends an attorney in certain situations, “If you have a house, I strongly encourage you to get a lawyer,” he told a recent pro se class.

“People who are not lawyers generally don’t know what marital property is. How it’s valued. How it should be divided. There are very specific and detailed methods of dividing those. Support is also essential for children.  How do you know what to do if you’ve had no training and experience?” asked Levine.

Couples often do not understand the financial consequences of the property divisions they are making, said Hogan. For example, one spouse cannot just erase his name from the loan on a house, even if the other spouse volunteers to take over house payments. And, it’s not the judge’s role to coach the parties to a settlement or contact banks to find out if the settlement is even feasible.

“It’s unethical for a court to help either side.  Because if I’m helping one side, both sides aren’t getting a fair shake,” she said.

* Contested cases

“If it’s a contested case, it should be handled by a lawyer,” said Smith. When spouses didn’t agree, Smith referred cases to another judge and recommended that litigants obtain legal counsel. If a dispute revolved around child custody or support, Weber said, the court would often appoint a guardian ad litem, an attorney whose role is to evaluate children's custody arrangements.

Both Smith and Weber said that they look for power imbalances among pro se litigants. If one party appears dominated by the other, said Weber, it may indicate domestic violence issues or that one party is pressuring the other for a settlement.

“We want to know if [the spouse is] intimidated or scared to speak up,” said Weber.

* Question of alimony

Another type of case cited as inappropriate for pro se litigation is that of a homemaker with a high-earning spouse who, after a long marriage, is getting divorced and doesn’t request alimony.

“The danger in this situation is that one party is more legally savvy than the other,” he said. The husband "wants to keep her away from a lawyer.”

Smith sees the judgels role as making sure that both parties are equally informed, without giving legal advice.

“A judge is kind of a gatekeeper,” he said.

Alternatives to standard litigation

Smith also sees growth in divorces using limited legal representation and mediation.

“Attorneys don’t have to take the whole case,” said John J. Ammann, director of legal clinics and clinical professor of law at St. Louis University Law School. “I would tell people, ‘It’s worth $100 to talk to an attorney and find out what you don’t know.’

“It makes it less expensive for those who feel they can’t afford the whole panoply of services,” said Levine. 

Some attorneys, said Smith, have built their careers around helping people with bits and pieces of a divorce case, but having the clients file the case themselves. 

Smith also mentioned mediation as a way to resolve conflict. “Mediation is getting bigger,” he said.

In his nine years on the pro se docket, Smith said he anticipates that the family law profession will continue to evolve -- to become less about fighting in court and more about peaceful conflict resolution. 

“I think what will change is the role of the lawyer,” he said.

Hilary Davidson filed pro se for divorce in St. Louis County in 2012 and appeared before Judge Dennis Smith.