In 1969, the nation’s first “no-fault” divorce system was adopted in the state of California. For the first time in the United States, either spouse could now obtain a divorce essentially on demand without having to state grounds or prove “fault.” All fifty states today provide no-fault divorce, and that change has opened up a variety of divorce options and alternatives for the average person. Contentious courtroom divorces not really that common today. Many couples opt for arbitrated divorce, mediated divorce, or collaborative divorce rather than going to court.
Others, however, choose to take their divorce to the courts – but without an attorney’s assistance. Now that “fault” does not have to be “proven” in a divorce proceeding, many assume that they do not need legal counsel to obtain a divorce. Before World War Two, couples with troubled marriages often did not turn to the courts, because most couples simply could not afford to divorce unless they were affluent, and the law made hiring an attorney a necessity. Some probably lived together unhappily. Others simply separated without taking legal action.
No-fault divorce opened up a popular “do-it-yourself” divorce market. Thousands of self-help divorce books were sold in the 1970s and 1980s and are still sold today. Do-it-yourself divorce seminars and workshops are offered by various organizations. With the emergence of the internet, you can watch the do-it-yourself videos and download all of the forms you need. Most states have a website with help and instructions posted for those who are representing themselves in a “pro se” divorce action. (“Pro se” is Latin – and legalese – for “on behalf of one’s self.”)
WHI IS REPRESENTING THEMSELVES IN DIVORCE CASES?
In 1994, the American Bar Association reported “a steady and significant increase in pro se divorce cases from the mid-1970s through the mid-1990s.” Those representing themselves in divorce proceedings tended to be young and well-educated but without children or substantial real estate or other significant properties or assets – mostly people married for less than a decade. Half of the cases in Florida’s family courts now, for example, are pro se on both sides, and in more than 80 percent of the cases at least one spouse is pro se. Recent surveys indicate a similar trend in family courts throughout the nation.
Spouses are more apt to act as their own divorce attorneys if there is not much at stake and if there are few resources to work with. Courts, bar associations, and legal aid groups routinely conduct clinics and educational programs, operate self-help centers, and sponsor alternative resolution programs. Self-help desks at most courthouses offer legal forms and educational materials. Alternative divorce resolution programs put divorcing spouses in touch with neutral professionals to help the couples resolve issues outside of the court system.
Honestly, pro se representation is a workable option for some couples – a very few. If both parties can split everything down the middle easily, or if they don’t own much, they can save some money that perhaps they do not have anyway. But if you have children, or if there are disagreements regarding alimony or property distribution, you are going to need a divorce attorney. In these cases, there is simply too much at stake to do-it-yourself. In southern California, you’ll need the help of an experienced Orange County family law attorney.
WHAT CAN DIVORCE ATTORNEYS OFFER?
In some cases, a spouse may very much want to represent himself or herself but nevertheless ends up needing a lawyer’s help with a specific aspect of the divorce. By offering limited and specific services (known as “unbundling”), divorce lawyers often help divorcing spouses find a midpoint between pro se representation and hiring a lawyer to handle all of the aspects of the divorce. These are among the limited or discrete services that most divorce attorneys will offer:
- providing legal advice in person or by phone, fax, mail, or e-mail
- providing advice regarding mediated and arbitrated divorce
- explaining and helping you conduct the discovery process
- providing guidance about filing and serving legal documents
- drafting motions, pleadings, and other legal documents
- reviewing any legal forms you have completed or documents you have prepared
- conducting public record searches
- contacting and questioning witnesses
- suggesting expert witnesses or even other attorneys who might be helpful
- helping you evaluate settlement options
- assisting you with an appeal
A 2010 American Bar Association survey told us that 54 percent of solo legal practitioners and 45 percent of the attorneys in firms with two to nine lawyers provide individual “unbundled” legal services. A comparable survey by the California Administrative Office of the Courts reports that half of the lawyers who responded prepare documents or review documents for divorce clients and only 25 percent do not offer any individual services.
WILL THE “PRO SE” TREND CONTINUE?
Lawyers, of course, have always provided “unbundled” services, but it is only in recent years – with the adoption of no-fault divorce and the emergence of do-it-yourself divorce – that this approach has been marketed and given a name. While no-fault divorce seems to make representing yourself in a divorce easier, the legal issues since the 1970s have become increasingly complex. Thus, combining pro se divorce representation with limited legal services is a trend that will probably grow in the years ahead.
Changes in society are always eventually reflected by changes in the law, and changes in the law have substantially changed the nature of the services provided by divorce and family law attorneys. Family lawyers in the 21st century solve a wide range of legal problems for their clients, work with divorce arbitrators and mediators, and often assist or belong to family-oriented agencies and community groups. Anyone who is considering a divorce in southern California – and anyone whose spouse is filing for divorce – should speak right away with a good divorce lawyer.
“Family law attorneys,” according to Orange County family law attorney Brian Bayati, “represent litigants in the legal arena while simultaneously counseling clients as to the practical implications involved in dissolving a marriage and determining custody of minor children.” In the future, family courts and lawyers will face new and difficult challenges. Many families – and courts – will have to accomplish more with fewer resources. By offering unbundled individual services, family law attorneys are now making it possible for more people to accomplish their legal goals, including divorce.
I would classify my top two priorities in handling a case as, one, to inform a client or perspective client about laws applicable to their family law situation. And I would say my second equally important objective is to spend time knowing the facts of their case, the underlying emotions, objectives, and to walk them through the family law litigation process, which can sometimes be very emotionally challenging.
Staying in touch with clients long after a family law case has successfully been completed and asking them how they reflect upon it, they commonly say that it is and was the most challenging chapter of their life, and I believe a good family law attorney is not only responsible for navigating a client through the legal aspects of a family law case, but also work with the client. If necessary, bring in experts or other professionals that have knowledge on how to navigate a client through their emotional challenges, what may be their socioeconomic challenges, tax challenges, as well as grieving challenges that they may face, depending on the facts of their case and the dynamic of their family.