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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.

  • KrisBelucci

    Hi, good post. I have been wondering about this issue,so thanks for posting. I’ll definitely be coming back to your site.

  • AndrewBoldman

    Great post! Just wanted to let you know you have a new subscriber- me!

  • GarykPatton

    Hi! I like your article and I would like very much to read some more information on this issue. Will you post some more?

  • I wrote an article on this subject for my column, Legal Pad, which can be found at:

    http://andersonobserver.squarespace.com/viewpoints/

    Unfortunately I think you will have to scroll down to find the article.

  • Two problems with the forms. First, they are dreadful forms. Second, the people using the forms are unaware of the consequenes of misusing the forms.

    I can live with the forms being dreadful because most of the documents I get from other lawyers are dreadful. It is unfortunate that state regulation of lawyers has not prevented the pracice of law to slip from the ranks of the “three learned professions.” If people are going to have poorly drafted documents, they may as well use the free poorly drafted documents.

    The real problem is that the people using the forms do not have the knowledge to ask the right questions, such as whether there is a 401(k) that may be marital or nonmarital property. They also do not recognize the consequences of the forms, such as equitable apportionment of property issues not raised during the divorce may not be raised later or that an order may estabish a set of circumstances or fail to establish a set of circumstances, thus making modification nearly impossible. An even worse problem is a couple using only one lawyer who represents only one party and the unrepresented party is raped by the lawyer. See Maxwell v. Maxwell, 378 S.C. 523; 663 S.E.2d 74 (Ct. App. 2007), which left me with a bitterness that has not subsided in the past three years. If the choice were to allow either two pro se litigants or to allow one represented litigant and one pro se litigant, I would opt for a rule prohibiting the represented litigant.

    I am all for the state regulating the practice of law. I only wish that the state would do a much better job of it. I think the public would benefit if lawyers were re-examined periodically, such as every five or ten years, and if tests were administered at the conclusion of mandatory CLE sessions with a passing grade required for credit.

  • I will always say Pro se without complete knowledge and without doing research and homework is not a good idea. Knowledge is your weapon when you are on your own.

    Thanks for your article.

  • I stumbled upon your post while researching an article about information asymmetry in the court system. I work for the Florida Association of Legal Document Preparers which is dedicated to educating pro se litigants. And although the Florida Bar and Florida Supreme Court have published pro se forms for about 10 years, many pro se litigants are still starving for information and in dire need of assistance.

    Great article.

  • I saw the new Final Order for Divorce form when I returned from the great GAL seminar Friday. The form is as bad as the seminar was good.

    I intended to comment on the form but then I saw that I commented above on August 6, 2010. My views have not changed. If someone in my office submitted one of these forms to me as a rough draft, that person would be fired for incompetence.

    Lawyers will make a lot of money untatangling the probelms this form will create.

  • Kim

    I am a pro se litigant in a highly conflicted family law case. First, I would like to say, Mr. Forman, your website has been priceless to me in my research and inquiry into the ins and outs of family law. What is disappointing is that South Carolina is not pro-se friendly. Where there are many states that offer places to go get assistance, samples of pleadings and motions, or even places where you can pay small fee for guidance and advice, I have found it nearly impossible to find any information here. I am not pro se by choice. I am out of money. I am a school teacher, and believe it or not make just barely enough to disqualify me from legal assistance. I had an attorney in the beginning and my $5K retainer was gone before we even got to the temporary hearing. So, not all of us find ourselves in this situation with any other choice. I am quite capable of writing my own motions and pleadings, what I would like is if I could pay a small fee for some guidance on what to file and when. I have even become more confident presenting my case before the court. I just feel it has been a struggle and very few are willing to help. I do thank you again Mr. Forman; your blog has been very educational and has been one source that I can count on. I even won a Rule to Show Cause because of you (and my ex has an attorney). Again thank you.

  • Kim raises issues that cause me much personal and professional discomfort. New Year’s Eve 1963 my intoxicated best friend argued that any change in the status quo is bad per se. I spent the next twenty years telling him that was the dumbest thing I ever heard. I spent the last thirty years apologizing.

    In responding to Kim’s post, I saw that I have already responded to this question twice, first on August 6, 2010, and again on January 29, 2012, which can be found above.

    When I first began practice forty-five years ago, we were all general practitioners handling criminal, personal injury, property, and other type cases. Now I practice almost exclusively in family law and appellate practice. During that forty-five years, I have seen many changes in family law including a shift from the “tender years doctrine” to the so-called principle of “best interest of the child,” establishment of the unified family court system (July 1, 1977), the establishment of South Carolina Court Administration, discovery (1969), equitable apportionment of property, temporary hearings based on affidavits, child support guidelines (1988), South Carolina Rules of Civil Procedure (1985), South Carolina Rules of Family Court, guardians ad litem in custody cases, mandatory mediation, and a kazillion mandatory family court forms. Most of these changes have been “bad per se.”

    The only two changes in domestic law are the child support guidelines and the Equitable Apportionment of Property Act. The guidelines brought some rationality, reasonableness, and consistency to child support, which previously varied from judge to judge, county to county, case to case. Many judges routinely awarded $5 per week per child but other judges might award $50 per week per child under identical circumstances.

    The Equitable Apportionment of Property Act recognized that both parties contribute to the accumulation of property, no matter how it might be titled.

    Separation, divorce, custody, support, and attorney’s fees were a simple straightforward process when I began my career. The standard fee, back in the days when minimum fee schedules were in effect, was $200 plus costs for an uncontested divorce and $300 for a contested divorce. Most uncontested divorces were heard by the resident circuit judge in chambers on a Saturday morning with no scheduling required. Contested cases were scheduled for one-half day, usually before a special referee. Trials were speedy and appeals were equally speedy.

    One example on trial and appellate times is from the criminal courts is State v. Corn, 215 S.C. 166, 54 S.E.2d 559 (1949), the second most famous murder trial in York County history. Nat Corn killed his employer on June 5, 1948, he was tried over a six-day period at the December 1948 term of general sessions court, convicted and sentenced to death. The Supreme Court reversed and remanded on July 28, 1949, In November 1949, he was again convicted but this time with a recommendation of mercy that only carried a life sentence. The entire period from crime to appeal to a second conviction was seventeen months for a case that garnered national news coverage. I watched one day of this trial while I was in the first grade.

    Today retainer fees start at outrageous and only go up from there. Few contested cases take less than a year and many take many years. Sexton v. Sexton which generated four or five appellate opinions was a year old when the defendant hired me on September 11, 1989. The case was finally resolved around 1999 or 2000.

    My wife Lucy is well known for having said the reason she does not practice in family court is because “There are no rules and the cases never end.” She is wrong about the rules. When I started my practice, most divorce cases involved about five sheets of paper, a one page summons, a two-page complaint, and a two-page decree of divorce. The filing fee was $5 and the sheriff charged $1.25 plus mileage for service. Today a typical initial filing requires a summons, a complaint, a motion for temporary relief, a UCCJEA affidavit, a family court cover sheet, a request for hearing, and notice of hearing. I may be missing a few documents because my paralegal handles much of this bureaucratic garbage. The filing fee is $150 plus a $25 motion fee. That is only the beginning. We prepare financial declaration, affidavits, proposed parenting plans, temporary hearing information sheets. The temporary hearing is followed by endless discovery and depositions, most of which is a waste of time, trouble, money, and effort. One of my all time favorite comments was by Kermit King, one of South Carolina’s best ever lawyers, who said that if we abolished discovery tomorrow, several large South Carolina law firms would lay off 75% of their lawyers.

    “The best interest of the child” may sound like a good standard but it is not. As Martin Guggenheim says is What’s Wrong with Children’s Rights (Harvard University Press, 2005), when most people talk about the best interest of the child, they are really arguing for what is in the best interest of an adult. The beauty of the “tender years doctrine” was that it made the outcome predictable and because the outcome was predictable, settlements were easier. Everyone knows when a child is “of tender years,” but “the best interest of the child” is a subject of endless debate, as we prove in family court every day.

    Robert Rosen published a great article, Getting Rid of the GAL: How to save your client from those expensive, unnecessary officious intermedlers in the Janury 2003 edition of South Carolina Lawyer. I subscribe to every view expressed by Robert and some even stronger views on guardians I developed on my own.

    While mediation can be helpful, it is always expensive and usually avoidable. Reasonable lawyers, even those with unreasonable clients, should settle cases without paying someone several hundred dollars per hour to shuttle back and forth between the parties with offers and counteroffers. I often tell clients that in most cases, the lawyers can within the first half hour of an initial interview predict with a fair degree of accuracy what the result will be. I then tell them that if the parties were smart, each would pay a lawyer $2,500 and authorize their lawyer to exercise their best judgment in negotiating a settlement with the other lawyer. If the lawyers failed to settle, they would have to try the case on their own time. Not only would there be many more early settlements, there would be a lot less spent on discovery, guardians, and mediation.

    In summary I am sympathetic to Kim’s plight because lawyers and the courts have allowed the system to become so complicated and expensive that adequate legal representation is beyond the economic means of most litigants. I find a $5,000 retainer offensive and I have difficulty understanding how it would be exhausted before the temporary hearing. Most of us went to law school to help the Kims of the world but now neither Kim nor her peers can afford us. Some of this is our fault but much of the fault lies with the legislature and the courts.

    Kim does not get 100% support from me. Her statement that “I am quite capable of writing my own motions and pleadings” is absurd. I complained about a pleading of a very good and respected family lawyer recently. The lawyer’s response was “South Carolina is a notice pleading state, and we have drafted a Complaint that puts your client on notice of what we are seeking.” My response included a quotation from one of my favorite resources, South Carolina Civil Procedure (3rd Ed.) by Professor James F. Flanagan explaining Rule 8, SCRCP: “South Carolina requires the more detailed Code Pleading rather than the notice pleading of the federal rules.” If that lawyer, whom I like and respect, cannot get it right, I doubt that Kim can. Also, I am constantly amazed and stunned by the requests for help from lawyers on List Servs asking for help with documents–and the better lawyers are the ones asking for help. As I frequently tell clients, “People do not pay lawyers big bucks to answer easy questions.”

    If Kim thinks that pro se representation is such an easy proposition, she should read the case of Maxwell v. Maxwell, 375 S.C. 182, 650 S.E.2d 680 (Ct. App. 2007). Mr. Maxwell was a good and decent man and father. He did not want the separation but he did not want to put his wife or his children through potentially nasty litigation. He agreed to what he thought was a reasonable settlement and went to Family Court without a lawyer to have the settlement approved. Some questions that should have been asked were not asked. Some innocuous words, such as “unmodifiable,” were used. He got totally screwed and was unable to get relief. Kim sounds intelligent, educated in other fields, and personable, but I doubt she is any more capable of representing herself than Mr. Maxwell was.

    My recommendation to Kim is that she decide whether the relief she seeks is important. If it is not, let it go. If it is, hire a lawyer, even if it requires going into debt or taking charity from her family, and then building a good case for the relief she seeks, including an award of attorney’s fees.

    As Ben Franklin said, “I apologize for the length of this letter. I did not have time to write a short one.” This is essentially a stream of conscientiousness rant that may overstate some arguments and argue minor points while missing other major points that I should address.

    As lawyers we should follow Christ’s quote “Physician, heal thyself.” Luke 4:23. Otherwise, we risk “killing the goose that laid the golden egg.” Aesop’s Fables (number 87 in the Perry Index). If you doubt this, reread what Kim wrote.

  • Kim

    To clarify, I do NOT think pro se litigation is an easy proposition, at all!! I would much prefer to have someone skilled and knowledgeable to help deal with my case. The stress from having to navigate through this on my own has taken its toll on me and my children. That being said, I fully agree that fees have gotten out of control. It is making legal representation out of reach for many people. The attorney I had working for me, used my retainer before the Temporary hearing, and then asked for another $7K to continue. In total, that is half of my bring-home pay in a year. Unfortunately for me, I chose a thankless profession that does not pay well. I have tapped out my family, because in addition to the attorney’s fees, there is a Guardian ad litem, possible up-coming Mediation, which I believe WILL be a waste of time and money, and I have an EX who does not consistently pay his child support and has just quite or been fired from his job. My EX also just lost his attorney and is not Pro-se, so the GAL wants to hire her own attorney of course at OUR expense.
    I have to fight for my relief, because there is no other choice. My Ex suffers from a mental illness, which the GAL has been helpful with in that she had him ordered to have supervised visitation until he completes a psych eval. I feel like I am in WAY over my head. I would love to know that there is help out there for someone like me; I just haven’t found it yet. Thank you, Mr. McDow, for taking the time to respond to my post.

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