Do-It-Yourself Divorces Clog Courts, Some Say

Last updated Saturday, October 1, 2005 9:25 PM CDT in Front

By Robin Lipscomb
The Morning News

"I, Harold G. Brightman, the plaintiff and representing myself, want these proceeding to get this divorce done with," he began.

The judge found room at the page's bottom to squeeze in her signature, "Divorce granted; grounds substantiated this 26 of May, 2004."

It cost Brightman a hundred dollars.

A growing number of people in Northwest Arkansas are representing themselves in divorces. Whether it's to save money or to be independent, the trend shows across the country, according to the American Bar Association.

"There's definitely a do-it-yourself movement ... it's the same mindset that makes Home Depot successful," said Will Hornsby, staff counsel in the bar association's Division for Legal Services.

Some litigants, like Brightman, are successful in acting "pro se" -- a Latin phrase meaning "in one's own behalf."

They are in and out court quickly and save hundreds of dollars. The most basic divorce in Northwest Arkansas with an attorney averages about $500, according to a random survey of attorneys.

But, sometimes, things are complicated. Wording is wrong, a phrase is missing. Questions weren't anticipated. The judge can't give legal advice, so a case gets rescheduled. Try again next week.

Pro se cases are "the cholesterol of the judicial system," said Mike Mullane, a professor at the University of Arkansas School of Law.

"They're the bane of my existence," admitted Benton County Circuit Judge John Scott. Often litigants aren't sure how to proceed, and they frequently want help, which judges are prevented from giving because of judicial ethics, he said.

Internet businesses prosper with the sale of divorce kits. Users complete forms online, and they're delivered ready to file. Wording is supposedly suited to individual state laws, but judges like Washington County Circuit Judge Mike Mashburn flatly said the companies are "ripping people off." Countless times, judges see pleadings that cite "irreconcilable differences." That's not even grounds for divorce in Arkansas.

"And doing anything more than providing a blank form is practicing law without a license," said Sebastian County Circuit Judge Jim Spears.

"The companies call it a mere typing service, but they're producing a legal product," said the bar association's Hornsby. Some franchises are being sued.

The Arkansas Supreme Court's Committee on Professional Conduct this year issued three cease and desist letters to companies found to be practicing law without a license by selling divorce forms. These went to Vaughn and Associates of Roland, Okla., Divorce Tech of Vancouver, Wash., and U.S. Legal Forms Inc. of Brandon, Miss.

The Morning News was unsuccessful Friday in contacting any of these companies.

Mashburn agreed that "the Internet forms really aren't all that good, and people pay up to $250 for them. They're throwing away money. If a form doesn't fit, I can't fix it. We're not allowed to hold people's hands."

In response to these and other concerns, the state Supreme Court in 2004 created an Access to Justice Commission to examine the increasing legal needs of poor Arkansans.

Less federal money is devoted each year to legal services for the lowest-income Americans, said Jean Carter, executive director of the Arkansas Center for Legal Services. Half the states have taken steps to make civil legal procedures more accessible for the poor. Arkansas falls into the half that hasn't.

The U.S. Constitution guarantees people accused of a crime the right to an attorney, but "that definitely does not apply in family law situations," Carter said.

In Arkansas, public legal agencies turn away thousands of poor each year.

To get a foot in the door at Arkansas Legal Aid, a client must earn less than $11,963 per year as an individual, or $24,188 for a family of four. He also must be a victim of domestic violence, disabled, age 55 or older -- or already have been served with papers.

"Then we'll do a full intake and check for conflicts," said Director Lee Richardson. No guarantees yet. "And we have nowhere to send the others. We used to try to give them advice, but there's an overwhelming number, so we just cut them off."

Last year 179 people in Washington and Benton counties received some degree of free help with a divorce from Arkansas Legal Aid. Only 59 of those had whole-case representation -- meaning an attorney attended the court hearing.

Legal Aid offers on its Web site, www.arlegalservices.org, a free 42-page divorce packet that includes sample forms for truly uncontested divorces for those with no children nor substantial property.

Spears said it fits Arkansas law and is a decent option, and it may match the direction the Access to Justice Commission heads in its quest to serve the poor -- people like Ricky Thomas, who wants to marry his fiancee, Vivian.

Thomas has been married to another woman for 14 years but said he can't afford a divorce lawyer. Unsure of his options, he went to the Benton County Courthouse earlier this month to see about representing himself.

Court Clerk Amy Vincent dug up some older court files to show examples of the paperwork he needs, but Thomas left discouraged. The forms were so complicated "they'll force me to go get an attorney. It's going to put me even more behind on my bills."

What if Thomas could step into the clerk's office, make a few taps on a computer and print the forms he needed -- for free? He would need only pay $145 to file the divorce.

The Access to Justice Commission is considering placing kiosks in circuit clerks' offices, where people could type in personal information and print ready-to-go divorce documents.

"What we do isn't a big secret," Spears said. "In the best of all worlds, they're going to have a lawyer, but we're trying to make this easier on them. If they're going to get forms, let them be right and not cost anything."

Nevertheless, judges are firm that having an attorney is best.

Divorces often appear simple at first but can quickly become complicated. And an attorney helps not just with forms and scheduling -- but with decision making and judgment.

"I'd want someone to help me," said Tom Smith, a Bentonville attorney. "I understand people want to save money, but I'd think twice if I had kids, property, real property or debt."

Smith gets pleas for help from pro se litigants who've met dead ends, or are confused, and, "I charge them a little less because they've already filed. But I tell them, if you need plumbing work, and it's important, you're not going to do it yourself. You're going to call the plumber."

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