Self Representation and Divorce: A New Way Forward
In family courts around the country, substantial numbers of people represent themselves in court. Recent national statistics suggest that a majority of divorce and separation cases (72%) involve at least one self-represented party.
Courts are evolving to serve the needs of this growing user group, and many are making court processes easier and more efficient for those without an attorney. However, self-represented litigants (SRLs) still face many challenges navigating the court system, and there are additional, unseen challenges that SRLs in divorce cases encounter. In an article for The Atlantic, Deborah Copaken gives us an unvarnished account of what it is like to go through the divorce process without a lawyer.
At the beginning of her divorce, Deborah was told by many other friends and family who had been through the process of divorce to “lawyer up.” Even her former therapist told her, “Make no mistake, divorce is a war.” However, she quickly discovered that hiring a lawyer cost upwards of $30,000 just to get started. And, that steep price tag was not out of the norm; divorce can cost anywhere from $10,000 to $25,000, depending on a range of factors like whether or not the case goes to trial, custody agreements, and so on. Like for many peope, such an expenditure was not an option for Deborah, and free legal assistance was also unavailable to their income level.
Research by by IAALS and others consistently shows that cost is the primary factor driving people to self-represent, but affordability is a nuanced issue. Often in divorce cases other financial obligations take priority over legal representation, and the division of a single household into two adds new financial stressors. In addition to an increase in her housing costs, Deborah faced the loss of a well-paying job and debt from the birth of her children decades before.
Many participants in IAALS’ Cases Without Counsel study of self-representation in divorce also discussed the amicable nature of their relationship with the other party—or a desire to achieve such a relationship—as factoring into their decision to self-represent. Similarly, Deborah and her husband had an amicable relationship, and thought they could hire a mediator to help keep things civil and to put their best foot forward; however, it was ultimately ineffective for them and cost an additional $1,400.
Due to a lack of funds for a lawyer, Deborah and her husband made no progress toward their divorce for two and a half years, leaving her to care for their children while also trying to make ends meet. It was only after she spoke to a legal aid lawyer at a Yom Kippur breakfast that she found out she could represent herself in court. Deborah recalls the lawyer telling her:
“You’re educated, you speak English, you’re rational, you’re not fighting over custody, and you’ll be civil to one another in front of a judge. Already you’re way ahead of the game. It won’t be easy, but it’s doable.”
After notifying her spouse of her decision to proceed without a lawyer, Deborah filed paperwork on her own and avoided paying a lawyer completely. After assuaging the concerns of her husband and a few other minor setbacks, she was able to finalize her divorce. In the end, that process cost her less than $700 rather than the $30,000 she was initially faced with.
Through the lens of Deborah’s story, the challenges that SRLs in divorce and custody cases face, both in the courtroom and in their day-to-day lives, are given greater context. Our legal system needs to do more to ensure that the needs of people like Deborah are met and that they have access to information that can assist them. As Deborah says herself, “All couples should have access to a legal expert who can help them through a divorce, step by step, as well as fair judges, such as the ones we were lucky enough to get, to dispense justice.”
From our Cases Without Counsel research, IAALS released a set of comprehensive recommendations for courts, legal professionals, and communities on increasing access for self-represented litigants. Additionally, IAALS recently released Listen > Learn > Lead: A Guide to Improving Court Services through User-Centered Design—a guide meant to assist court stakeholders in holding design sprints workshops with everyday people focused around improving court processes for those who represent themselves. By hearing from the SRLs themselves, courts can ensure that they are implementing policies that will be effective and solve the important issues that these litigants face.