The Texas Family Law Foundation has gone to the Legislature with its battle against pro se divorce forms. Sen. José Rodríguez, D-El Paso, filed a bill March 6 that would impact forms the Texas Supreme Court promulgated after intense debate, and any future forms the court creates for self-represented litigants.
Family law attorneys widely opposed the forms. The bill addresses some of their concerns regarding how people can use the forms and how the forms instruct courts to divide retirement benefits, says Texas Family Law Foundation lobbyist and Austin solo Steve Bresnen. The foundation advocated for the bill, he says.
"Our overall position is: There’s been no established, institutional capacity within the court to do forms," Bresnen says. "Now that they’ve gone down that road, it’s incumbent to put some structure in place: the role that forms play, and how they operate in the system. . . . That’s what this bill does."
But forms supporter Trish McAllister, executive director of the Texas Access to Justice Commission (TAJC), says she fears an "unintended consequence" from the bill: decreasing access to justice for low-incomepeople.
She explains, "My fears are this legislation will be a mechanism for the courts or lawyers to prevent the poor from accessing the court with the forms the [supreme] court has approved for the specific purpose: to increase access to justice."
Luis "Sito" Negron, the communications director for Rodríguez, says he wasn’t able to talk with the senator regarding questions about the bill before deadline.
Senate Bill 1261 would affect "standardized forms" promulgated by the high court and the instructions for using the forms. SB 1261 bars the Supreme Court from making rules that conflict with the bill’s provisions.
Several provisions would apply to trial courts hearing cases in which a litigant used a form. Courts couldn’t grant relief or enter orders based on a form that "does not comply with substantive or procedural law." They couldn’t accept a form if a litigant prepared the form inconsistently with the instructions or used the form for purposes "other than the use authorized by the order adopting the standardized form."
In cases where a pro-se divorce litigant uses a standardized form, the bill would prohibit a court from entering a final decree of divorce until each spouse disclosed the existence and value of their retirement accounts or swore that they didn’t have retirement accounts.
One provision in the bill, "intended to clarify existing law," stresses that parties aren’t required to have lawyers; however, self-represented litigants are "subject to the same substantive and procedural law as a person who is represented by an attorney."
TAJC Chairman Harry Reasoner says that the Supreme Court followed a lengthy process to draft and approve the forms and the bill "would wrongly alter and interfere with the procedure the court went through exhaustively."
Reasoner, a partner in Vinson & Elkins in Houston, says, "I think it’s a very bad bill. . . . If changes need to be made, they should be addressed to the Texas Supreme Court."
Dallas family law solo Diana Friedman, chairwoman of the State Bar of Texas Family Law Section, says that the bill would make sure people only use the forms for their intended purpose.
"I think that will avoid a lot of misuse of the forms," she says.
Bresnen says the instructions for the divorce forms indicate they are only for uncontested cases; however, he says, the petition form says if the spouses do not agree, the court should divide their property. Bresnen says that if spouses do not agree, that means the divorce is contested.
"What we are trying to establish is a rule of construction that if there is a conflict between an order of the court or the instructions on the form, then the court’s order will prevail," explains Bresnen.
But McAllister says many divorce litigants start out believing their divorce is uncontested, but later, they disagree about issues. The bill is unclear about what happens in those circumstances, she says.
Friedman notes that the bill’s provision about disclosing retirement benefits is especially important to family law attorneys. The forms say that a court should award retirement benefits to the spouse who earned them.
"This would ensure the other spouse knows the assets, the value of it and the existence of it," says Friedman about SB 1261.
Bresnen adds, "That’s a particularly bad outcome of the forms that were adopted, so we want to graft onto that a procedure that has at least the possibility to avoid that bad outcome being realized."
Texas Supreme Court Justice Nathan Hecht, the high court’s liaison to the TAJC and the task force that drafted the divorce forms, says if disclosing the amounts in retirement accounts is important, then "it should apply to lawyers too, not just people who can’t afford lawyers."
McAllister says the bill doesn’t spell out how a pro se litigant is supposed to disclose retirement benefits, and the disclosure requirement could become a "barrier" to pro se litigants using the forms. She notes that she expects mostly low-income people to use the divorce forms, and those people typically have little to nothing in retirement.
She says the Supreme Court "investigated this exact issue, and they determined the forms as ordered were sufficient and would be in the best interest of folks in our state who have no access to justice."
Hecht says it seems that the bill targets the high court’s forms but doesn’t address the use of forms in general.
"The problem with that is people are already using forms they get on the Internet, and the bill doesn’t say anything about how those forms are going to be used," says Hecht. "People shouldn’t be using forms from Craigslist when they can get forms tailored for Texas law."
The bill applies specifically to pro se litigants, but McAllister expects attorneys to also use the forms for pro bono clients. So, the bill creates a situation in which "one group of people are required to do things that another group is not required to do."
Hecht says, "The forms were adopted by the court to try to help people that don’t have the means to hire a lawyer to access the courts, and they’ve been adopted in almost all the other states without problems, and we hope the Legislature will give these forms time to prove themselves."