Are the new South Carolina pro se divorce forms a good idea?

On March 17, 2009 the South Carolina Supreme Court approved and adopted forms for unrepresented spouses to obtain divorces without the use of attorneys.  Most family law attorneys who have weighed in on these forms have been strongly opposed.  An expressed concern is that these forms will lead unrepresented spouses to make uninformed decisions regarding division of property or spousal support.  A hidden concern is that these forms will cost attorneys business.

So far I believe I am the only family law attorney willing to publicly state that these forms are a good idea (not that they could not be improved, as they will be through use and experience).  To understand why I believe these forms are a good idea delves into the very nature of the practice of law and the legitimacy of government licensing of professions.

A number of well regarded libertarian political philosophers, such as Ayn Rand and Milton Friedman, have questioned the legitimacy of government licensing of the professions.  In their view, government licensing creates an artificial constraint on entry into the professions that increases the costs of delivering these services without providing commensurate benefits (they are ambivalent whether the government could legitimately provide certification, based on testing, of whether an individual professional meets certain minimum levels of competence).  Their belief is that the free market could do a better job of weeding out the atrocious practitioners and elevating the excellent practitioners.

I disagree with their view for two reasons.  First, I believe the market for most professional services operates within a domain of asymmetrical information: that is the seller of such services has much greater information of the quality of the services being offered than the potential buyer of these services could hope to obtain at a cost low enough for the market to operate efficiently.  There are plenty of empirical studies showing that when there is asymmetrical information markets do not operate efficiently.  Government licensing of professionals can be seen as a method of reducing the cost to potential buyers of professional services of obtaining information regarding the quality of the services being offered.  Second, most professions have obligations outside of pure market considerations, and a free market may not be adequate to protect these obligations.  For example, attorneys have an obligation to pursue justice, keep client confidences, and operate within the bounds of rules that circumscribe their conduct.  A justice system that allowed untrained, unlicensed attorneys to suborn perjury, destroy or manufacture evidence, or use client confidences to their advantage (at least until their misdeeds were discovered and that attorney barred from further practice) would undermine the justice system.  If we expect professionals to have duties other than to their own self interest, licensing of the professions, with the government acting as a gatekeeper, is probably required.

However attorneys frequently forget (if they ever realized) that we practice within a legalized monopoly, with the government’s gatekeeper role into the professions limiting a free market in professional services.  Because the professions operate within a legalized monopoly, they need to be careful about expanding the definition of professional services outside the boundaries of what is absolutely required.  The ability of licensed professionals to charge monopoly prices for their services generates pressure within the professions to try to expand the boundaries of their profession.  When any definition of professional services is expanded beyond the boundaries of what is necessary the protect the two interests discussed above, the government’s licensing of the professions stops being something that protects the public interests or allows for more efficient markets and instead becomes an unjustifiable windfall for those within the profession.

It is my belief that, within family law, the boundaries of professional services has expanded beyond this point and that the pro se forms are a welcome corrective.  Many of the legal services that these forms will replace are in the nature of scrivener’s work; that is the attorney merely drafts an agreement that the spouses bring to him or her.  Clearly only attorneys should be providing the service of representing spouses in contested family court matters (“contested” matters does not only include litigated matters–many contested matters are resolved through negotiation prior to suit being filed).  However the mere memorialization of marital dissolution or child custody and support agreements probably would not constitute the practice of law but for the requirement that such agreements be approved by the family court in order to become valid and enforceable.  There are myriad contacts that are negotiated, drafted and executed–such as employment or rental contracts–without such actions being considered the practice of law.  Only the unique requirement that certain agreements regarding spouses or children be approved by a court to become valid and enforceable has allowed the boundaries of the practice of law to greatly expand in the family law field.

If the South Carolina Supreme Court had authorized paralegals to draft marital settlement agreements when the issues were uncontested the need for these pro se forms would have been greatly reduced.  Instead many spouses have been priced out of the market for legal services because they were required to pay attorney prices for work that could be done by non attorneys.  It is unsurprising that some attorneys are unhappy about these forms, as they are designed to reduce the market for uncontested marital dissolution work.  However it is the systemic abuse of our privileged position as a monopoly provider of services that made such forms necessary.

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