Texas Supreme Court Advisory Committee chairman Chip Babcock says he thinks the consensus on the committee is that standardized pro se divorce forms are a good idea but some tweaks could make them better.

At an April 13-14 SCAC meeting, which was open to the public, the SCAC reviewed and suggested changes to the Texas Supreme Court’s Uniform Forms Task Force’s controversial draft forms for uncontested divorces with no children and no real property.

The brouhaha over the forms erupted last fall when the State Bar of Texas’ Family Law Section raised concerns that the forms could cause pro se litigants’ to make mistakes, and possibly hurt lawyers’ livelihoods, among other things. [See "Draft Forms for Pro Se Divorce Litigants Create Controversy," Texas Lawyer, Jan. 16, 2012, page 1.]

On Jan. 20, the Bar’s board of directors requested that the Supreme Court suspend the work of the forms task force so the Bar could study the issue. Instead, the high court on Jan. 25 sent the forms to the SCAC and noted it was open to the Bar’s input.

During the meeting on April 13, SCAC members’ suggestions included changing the divorce forms’ instructions to create more prominent warnings about who shouldn’t use the forms; using understandable, common terms instead of legal jargon; and including instructions on dividing retirement plans, among other things.

“I think the forms are in pretty good shape. If there is some tweaking, they will be in a position that will be acceptable to everyone involved in this,” Babcock, a partner in Jackson Walker in Houston, says in an interview.

He says the SCAC will forward a complete record of its meeting to the Texas Supreme Court, which will examine the committee’s discussion to help make a decision on the forms.

Texas Supreme Court Chief Justice Wallace Jefferson says, before taking action this summer, the court will wait for the record of the SCAC’s review on the draft divorce forms and all the public comments. He says he thinks people on all sides of the issue recognize there’s a “crisis” in indigent Texans gaining access to justice.

Voices From the Meeting

During a one-hour public comment period at the SCAC meeting, 15 of 16 speakers said they supported the divorce forms. Most were lawyers who said they thought the forms would help poor people gain access to the courts. Several judges also favored the forms, saying they may allow judges to handle pro se filings more efficiently.

The SCAC also heard comments from Texas Access to Justice Commission executive director Trish McAllister, State Bar of Texas Solutions 2012 Task Force co-chairman Tom Vick Jr., and Texas Family Law Foundation lobbyist Steve Bresnen. [See the Access to Justice report.]

The TAJC supports the creation of standardized divorce forms for indigent pro se litigants. In an April 6 report sent to the SCAC, the TAJC notes that it works to increase legal-aid funding and pro bono resources, but with 6 million Texans below the poverty line, those efforts only help 20 percent of indigent litigants.

The report notes other states with standardized forms show increased access to the courts for the poor, improved judicial efficiency, and benefits to lawyers by making pro bono work easier and attracting limited-scope representation business.

At the meeting, forms supporter McAllister told the SCAC that indigents already file pro se cases, and standardized forms won’t hurt them or lawyers.

Vick, a partner in Vick Carney & Smith in Weatherford who opposes the forms, said at the meeting their use wouldn’t be restricted to poor people, and they are “the first step” in the creation of a “self-represented litigants’ culture.”

Vick co-chairs the Solutions 2012 Task Force, which submitted a report to the State Bar board of directors and the SCAC that proposes alternative “solutions” to help indigent pro se litigants. Among the ideas are offering free or reduced-price continuing legal education in exchange for pro bono work; easing professional-liability insurance requirements for lawyers who seek to be placed on pro bono referral lists; and requiring pro se litigants to complete training. The task force’s Solutions 2012 Report also suggests creating mandatory pro bono requirements for lawyers but notes that some Bar leaders oppose the idea.

The report includes “cautionary concerns” about pro se forms, including how to keep the forms current in the face of changing law, whether only indigent litigants could use the forms and how courts would ensure people use them correctly.

Forms opponent Bresnen told SCAC members at the meeting that the Uniform Forms Task Force produced “bad forms” that are “riddled with errors.”

Speaking with Bresnen, 267th Family Court Judge Judy Warne of Houston said pro se divorce litigants use forms in her courtroom, but “they don’t understand the significance of what they are doing” and they really need lawyers’ advice.

Bresnen says in an interview some of the most important form deficiencies involve a failure to require petitioners to state a court’s jurisdiction over a respondent who doesn’t meet jurisdictional requirements, and a misstatement of the law about what constitutes separate property. A coalition of four family law groups — the Bar’s Family Law Section, the Family Law Foundation, the Texas Chapter of the American Academy of Matrimonial Lawyers and the Texas Academy of Family Law Specialists — examined the divorce forms and highlighted more than 70 “defects” in a report submitted to the SCAC.

In a separate document to the SCAC, the Family Law Section and the Family Law Foundation list “Ideas for Pro Se Litigants.” The groups’ ideas include amending Texas Rule of Civil Procedure 7 to authorize pro se litigants to use already-existing forms from the State Bar or from a legal-aid provider; and setting up a new State Bar 1-800 number to forward low-income Texans’ legal matters to Bar sections, which would arrange pro bono or reduced- or limited-scope representation. [See the groups' ideas and a response to the task force's report.]