The Texas Supreme Court on June 17 issued the final version of pro se divorce forms, with revisions that address a major concern that family lawyers raised about how the forms divide retirement benefits.
The draft forms awarded retirement to the spouse who earned it. But the final forms require each spouse to disclose the values of his or her retirement accounts and give instructions on dividing them. The forms recommend that litigants who divide retirement accounts hire a lawyer, noting they'll need a separate qualified domestic relations order (QDRO) to do so and that it's not included with the divorce forms.
"It was not done before because it was thought to be too complicated," says Justice Nathan Hecht, the high court's liaison to the Uniform Forms Task Force, which drafted the divorce forms. "We were just trying to do what we could to provide a simple set of alternatives that wouldn't unduly complicate the form and yet would make it possible for people to divide that asset if they want to."
Two forms supporters and two opponents all say they think the change improves the forms. But a supporter and an opponent agree that, while it's good to give people options about dividing retirement, they're concerned that obtaining a QDRO is too complicated for pro se litigants. Without a QDRO, an employer or benefit-plan administrator would not divide a couple's retirement accounts; they would go to the spouse who earned them.
"I think it's unfortunate that it's included," says Sherri Evans, chairwoman of the State Bar of Texas Family Law Section, which opposed the forms from the beginning. "You're creating this whole new can of worms, which is: To divide it, you have to have a QDRO."
Trish McAllister, executive director of the Texas Access to Justice Commission, which supported the divorce forms for use by indigent litigants, says, "We'll just monitor the use of the forms from now on and see if any problems arise due to people needing a QDRO and not knowing what to do and not being able to afford one. We'll see how that plays out."
Steve Bresnen, a lobbyist for the Texas Family Law Foundation, which opposed the forms, says the foundation still is concerned that some people who could afford lawyers — and may have large retirement accounts — will use the forms to represent themselves instead of getting lawyers.
"What we've advocated . . . was to make sure that the parties were informed as to what their interests were," says Bresnen, an Austin solo. "These forms have to be set up in a way that can work for anybody, because they are not limited for use by low-income people."
Justices Debra Lehrmann, Phil Johnson and Don Willett all objected to the draft forms because of the retirement issue, among other things, but they all signed the order approving the final forms. [See "High Court Approves Initial Set of Pro Se Divorce Forms," Texas Lawyer, Nov. 19, 2012, page 1.]
Lehrmann says the draft forms were "very unfair" in giving retirement to the earning spouse, but the final forms require "full disclosure."
"We all work very diligently and work hard to try to make the jurisprudence of the state the best it can be," she says. "I think we've come up with a product that is much, much better and greatly improved."
Stewart Gagnon, chairman of the Uniform Forms Task Force, says he thinks the new way of dividing retirement is "a pretty good approach."
"We wrestled a lot with whether to include retirement, and how to include retirement," says Gagnon, partner in Fulbright & Jaworski in Houston.
The change allowing litigants to divide retirement is the most significant, but it's not the only revision. Among other changes, the final forms delete a sentence that instructed litigants to check with a court clerk on further steps to finalize their divorces. The final version of the waiver-of-service form also changes language regarding military personnel and waiver of certain rights under the Servicemembers Civil Relief Act.
McAllister notes that the draft forms were effective in November, and she's already seen them progressing through the courts.
"We haven't heard any problems from courts. We haven't heard any problems from lawyers or clients," she says. "They are serving the purpose they were intended to serve: allow people to have access to the judicial system, where they otherwise wouldn't have. It's a good thing."