A Divorce Without Lawyers Is Hard — Does It Have To Be?

By RJ Vogt
June 3, 2019

Imagine you need a divorce, but you've heard it costs a fortune to hire an attorney. Money's already tight as it is, now that you've separated from your partner, so you decide to represent yourself in court. There's no kids and not much property after a short marriage that both of you want to end.

How much of a difference would a lawyer make anyway?

The answer is "too much," according to a November 2018 study by Harvard Law School's Access to Justice Lab.

Titled "Trapped in Marriage," the three-year study found that when a legal aid group directed low income divorce-seekers in Philadelphia County to use self-help materials, just 5% managed to end their marriages, unless they ended up with legal counsel or their spouse initiated the suit.

Those offered volunteer pro bono lawyers were five times more likely to get divorced in the same time frame. Jim Greiner, a Harvard Law professor and co-author of "Trapped in Marriage," said the vast disparity can't be explained by those who claim divorces that may seem simple are actually complex due to child custody, support and alimony issues.

"This was basically a bunch of very severely poor people who didn't have much in the way of property or assets to fight about," he said.

Click to view interactive version

Greiner said the real barrier was the process itself — a problem of potentially constitutional proportions, considering that divorce is a right that can only be exercised in court.

The complexity of do-it-yourself divorce persists well beyond the City of Brotherly Love. A 2016 survey across four other jurisdictions found "a great many self-represented litigants struggle with understanding how to navigate the process." One respondent said going it alone "felt very much like wandering through a room with no lights on."

That survey also reported 80% to 90% of domestic relations cases involve at least one unrepresented party.

To simplify divorce for the large and growing majority of litigants who can't afford attorneys, many courts are experimenting with out-of-court divorce models or expedited proceedings. Such programs, however, are not available to everyone across the country.

Greiner said his research revealed many people may be trapped in unhappy or unstable marriages they would otherwise leave if not for the significant procedural obstacles of getting divorced.

"It is a procedural system that is hard to justify," he said.

Escaping Marriage

The "Trapped in Marriage" study details how hard it is to get through the system on your own, at least in Philadelphia's family court infrastructure for pro se litigants from 2011 to 2013.

At the time, Pennsylvania court websites did not have statewide pro se divorce documents, forcing the self-represented to rely on local third-party manuals that weren't always up to date.

Mandatory waiting periods applied at different stages, even if a mutually willing couple had already been separated for over two years. Court forms featured hard-to-understand jargon like "Praecipe to Transmit the Record to the Prothonotary." Some instructions indicated a typewriter must be used to fill out the final proposed divorce decree, though judges said otherwise.

"As a longtime litigator, I had no idea what some of those forms meant," Greiner said. "There were also some practices that everyone thought the court system had in place that were either not there or just different."

The system has since improved, according to court staff, and it's true that some people do pull it off, in Philadelphia and elsewhere. Deb Copaken managed her own divorce in New York City, chronicled the difficulties online for The Atlantic and spoke to Law360 at length about finding her way through the process.

Deb Copaken, who successfully managed her own divorce without an attorney, displays the cut-and-pasted together postcard she had to craft as the final step in the pro se process. (RJ Vogt | Law360)

Her case was complex: Copaken and her husband shared multiple debts and assets and had the custody of their young son to consider. When they decided to split up, she looked into hiring a lawyer to handle things. But the $30,000 to $100,000 quotes she got were far too high, even for a bestselling author, writer and photojournalist.

"We should have legal aid for people getting a divorce," she told Law360. "They shouldn't have to prove economic hardship."

Val Kleyman, a New York divorce lawyer with 14 years' experience and over 1,000 cases under his belt, agrees that divorce can be prohibitively expensive even for middle class people.

Though he noted that some nonlawyer companies will prepare documents for you, without legal advice, for $500 to $1,000, Kleyman said most attorneys will charge over $200 per hour. Anything more complex than exchanging a few financial documents can get very costly, very quickly.

"If a case doesn't resolve in 10 hours of legal work, after that the gap is very big," he said. "It can go from 10 hours to 310 hours really easily."

Too wealthy to qualify for pro bono representation and not wealthy enough to afford a lawyer, Copaken spent $1,400 on an unsuccessful mediation attempt with her husband before settling into an uneasy three-year separation.

Copaken told Law360 she felt "trapped in marriage" — forever entwined in things like taxes and health insurance — until a lawyer friend advised going it alone. Her ex-husband Paul, who requested that Law360 only use his first name, said he was surprised pro se divorce was even possible when she raised the idea, but got on board because hiring an attorney was unfeasible.

With a little pro bono advice from her lawyer friend, New York Legal Assistance Group mediator Antoinette Delruelle, Copaken started the divorce process by filing a custody and child support case that took over a year to resolve.

"I could've fought for more child support if I had a lawyer," she told Law360. "But I would have had to pay a lawyer a lot of money to get a relatively small amount more."

After custody was sorted out she filed for pro se divorce, getting a little more help from her lawyer friend to work through the myriad legal documents that ultimately made up her divorce file. One of the last steps was crafting a self-addressed postcard, "literally cut and pasted together" she said, for the court to stamp and mail back to her once the divorce was final.

In the end, Copaken reckons it took her 15 months and $626.50 to dissolve her marriage without representation. Her ex-husband said he thought the process was "surprisingly easy" but added that it was only possible because they were amicable, and helped out by a friend.

In some ways, Copaken said not having lawyers allowed them to negotiate in a less adversarial manner. Still, the Kafkaesque experience made her wonder if there's a simpler way.

"It doesn't need to be that complicated," Copaken said. "When you get married, you stand in front of a judge and say 'I do.' You should be able to say 'I don't.'"

Alternative Solutions

In some ways, divorce today is actually easier than it was before 1969, when California became the first state to allow "no fault divorces."

The move started a trend that every other state followed within 20 years, eliminating the need for divorce seekers to accuse their partners of marital misconduct and diminishing the stigma around divorce in general.

But expanding the grounds for divorce didn't necessarily make the actual process easier.

Several states have since tackled that problem by tinkering with simpler options for those without lawyers. Washington allows "limited license legal technicians," who need not attend law school to earn their license, to help lower-income people in family law disputes. In May, New Mexico said it would look into a similar program.

From 2013 to 2015, Colorado courts experimented with an out-of-court model developed by the Institute for the Advancement of the American Legal System. In that model, University of Denver grad students, under supervision, offered holistic services at a low rate, and retired judges provided uncontested, on-campus hearings to those seeking permanent orders.

After two more years off campus as a community center, however, the project closed down when it couldn't establish self-sufficient funding. A total of 116 people fully completed its process over four years, according to a May report.

Another option is the Early Resolution Program, which has been running for 10 years in Alaska. There, courts themselves screen new pro se cases for ones with no complications like domestic violence, incarcerated parties, tangled finances or child protection concerns.

Those that fit the bill get screened again to determine whether they'd benefit more from free attorneys, a mediator or a settlement judge. Cases are rapidly mass-calendared, and parties can appear by telephone — crucial, in a state as remote as Alaska. There are no income requirements, so someone like Copaken might have qualified for free help.

Stacey Marz, director of Alaska's Family Law Self-Help Center, told Law360 that the program resolves about 80% of its cases by agreement within three weeks and after just one hearing. She believes its success proves that the traditional adversarial process is "absolutely ill suited" for divorce, especially for self-represented litigants.

"They're not well versed to do well in that system," she said. "And when you're trying to figure out the best interest of the child, or if you're dividing up marital property and debt ... there's not a lot of value in legal gamesmanship."

Another alternative is "summary dissolution," a sort of sped-up divorce procedure that one 2016 paper compared to "the fast lane at the supermarket." Nearly half of the states have some kind of summary dissolution statute, though many limit eligibility only to those with short marriages, no children and no significant assets.

In these cases there are no trials, just agreements that become orders of the court. Parties retain no right to appeal the judgments. The process's speedy and simplified nature makes that counsel cheaper and self-representation easier.

Lynda Munro, a retired Connecticut Superior Court judge who co-wrote the 2016 paper and now works in private alternative dispute resolution, noted how summary dissolution can save parties time and the loss of wages that comes with skipping work for multiple court hearings.

She added that the traditional model, with more opportunity for judicial oversight, can be more valuable when one party is especially vulnerable, as in domestic violence cases.

"You do want to protect the person who's in an unequal relationship," Munro told Law360. "You need someone, a lifeguard on deck, to make sure things don't go down in a way that is harmful."

For those otherwise amicable cases that involve nothing more than legally dissolving a marriage already dissolved in every other way, some have called for taking divorces out of courts entirely. Minnesota legislators have twice proposed administrative divorce options that would circumvent the need for a judge, though neither proposal became law.

In 2017, France began allowing nonjudicial divorce by mutual consent. In that system, the final contract must be notarized and each spouse must have an attorney.

Analyzing whether America could ever follow in France's footsteps, Indiana University law professor Margaret Ryznar and Paris-based notary Angélique Devaux wrote last year that the U.S. has "started to move in this direction by a heavier reliance on mediation, more formulaic divorce laws, and summary dissolution."

Greiner, however, pointed out that the real problem in America is getting a lawyer in the first place, something that the French model requires. He said it will take a combination of technological improvements, procedural simplifications and maybe even "breaking down the lawyer cartel" for the access to justice problem to be mitigated.

Otherwise, he said, there could continue to be "a bunch of people ... who are still married and don't want to be."

--Editing by Brian Baresch.

Correction: A previous version of this story misnamed an alternative court program in Alaska, an attorney in New York and a university in Colorado. The errors have been corrected.

Update: This article has been updated with additional information about the lawyer who assisted Deborah Copaken.

Have a story idea for Access to Justice? Reach us at accesstojustice@law360.com.