Going It Alone in Divorce Court

Divorce_Pro Se Style

C. M. Glover for The New York Times
THE mother from North Haven sat in the back of Judge Patricia L. Harleston’s wood-paneled courtroom at the New Haven County Courthouse and cried quietly. She was unemployed, she owed more than $2,000 in child support and she had no idea how she was going to defend herself. She said she couldn’t afford a lawyer, so she was representing herself at the child support hearing. Meanwhile, the lawyer for the father of her children sat across the room.

Diane Polan with a copy of a book she helped to write 30 years ago.

“I don’t know what my rights are,” said the mother, who asked that her name not be used because of the sensitive nature of the hearing. “When someone else has an attorney, they know all the ins and outs and I don’t.”

Her situation was far from unusual. Judges, lawyers and other court personnel said in interviews that an increasing number of people over the last few years have been representing themselves in family cases, which include divorces and child-support and paternity hearings. The judges and lawyers said most people are representing themselves because they can’t afford lawyers. And since there is usually no guaranteed representation in Family Court, like in criminal cases, and legal aid groups don’t have the staff to step in, these “pro se” litigants are being forced to go to court alone.

In the fiscal year that ended on June 30, 51 percent of the people in family cases and 45.7 percent of those in divorce cases represented themselves, according to statistics from the Connecticut Judicial Branch. That’s almost 5 percentage points more pro se parties in divorce cases than the previous year.

A separate judicial branch study of pending divorce cases in 2010 found that 26 percent of the parties were pro se. While many of those cases are straightforward and mostly involve paperwork, others are more complicated. In those cases, people with no training who try to represent themselves must learn the rules of evidence and court decorum on the fly. It doesn’t always go well.

“A few poor people are lucky enough to get legal services, but it’s very few,” said Paul Garlinghouse, a New Haven family lawyer who has worked in a clinic to teach people to represent themselves. “But then you have this huge mass of low-income and moderate-income people who just have to go it alone. You see them every day. They just stand up there, and it’s painful to watch.”

And all too often, the experts said, the litigant without a lawyer is a woman.

“What really is disturbing to me is that one spouse, often the woman, is unrepresented and the other has a lawyer,” he said. “Any decent attorney can run rings around a pro se.”

Pro se representation was not always seen as a symptom of the legal system’s economic divide. When people first started representing themselves in Family Court, many considered it empowering.

In the early 1970’s, it was virtually unheard of to go into court without a lawyer. Sarah D. Eldrich, a divorce lawyer in New Haven, was divorced in 1972 when she was a 21-year-old student at Quinnipiac University. Ms. Eldrich, who worked at the New Haven Legal Assistance Association while she was attending college, knew how to draft the papers for a divorce, but said she was discouraged from doing the divorce herself. The experience, she recalled in a recent interview, made her feel powerless.

“It was just plain wrong,” she said. “People should have access to courts.”

Just a year after Ms. Eldrich ended her marriage, divorce in Connecticut changed dramatically, opening the way to more pro se representation. In 1973, the Legislature passed a law allowing no-fault divorces, so a married couple who had decided to break up did not have to prove it was someone’s fault. That eliminated the sometimes difficult process of showing that one party had committed adultery or had been intolerably cruel, which were two of the reasons spouses could give for seeking a divorce.

Still, in the early years of no-fault divorces, most people still went to lawyers for help, even for simple cases. A study conducted in two family courts in Connecticut from 1974 to 1976 and published in the Yale Law Journal found that 2.7 percent of the cases involved a pro se litigant.

Ms. Eldrich and others she knew through the New Haven women’s movement vowed to change that. They published a book that taught people how to do their own divorces if the cases were simple, believing that it would empower people to get involved directly in the court system. And because women were often the ones to initiate the divorce, they considered the book a way to empower women particularly, said Diane Polan, one of the authors.

That book, “Do Your Own Divorce in Connecticut,” was published in 1975 and was distributed mainly at women’s centers. The authors also taught divorce litigants how to represent themselves and worked with judges to smooth the process.

Ms. Polan said she never meant for people with complicated divorces to represent themselves.

“When we wrote the book we thought it was for a very limited group of people to use,” she said.

As time went on, other factors played a role in spurring the increase of pro se litigants. Shirley M. Pripstein, who practices family law with Greater Hartford Legal Aid, said federal budget cuts in the mid-1990’s sapped agencies that provided free legal service to the poor. Legal aid lawyers began to concentrate on the most difficult cases, such as those involving domestic abuse. They didn’t have time or resources for poor people involved in more-standard divorce cases.

“So many poor people were calling legal services and they couldn’t all be represented,” Ms. Pripstein said.

The Judicial Branch also gradually grew more accommodating, creating its own books and manuals on how to represent oneself in a family case. Courthouses began providing mediators to talk people through their cases and attempt to broker a compromise.

In New Haven, for instance, Family Court litigants must talk to a family services counselor before their case. Eight courthouses have court service centers, which offer guidebooks on the court system and are staffed with court personnel. Ten have public information desks. Much of the information necessary to complete a divorce is also available online.

Those services, said Judge Julia Dewey, the state’s chief administrative judge for the family division, made people feel more comfortable standing in front of a judge without a lawyer by their side. The court system’s new openness may have contributed to the increase in pro se representation, judges said.

“It’s not uncommon now to have both parties in a contested case or at least one pro se,” said Judge Elliot N. Solomon, the presiding judge in Family Court in the Hartford Judicial District. “It’s certainly nowhere near as rare as it was in the late 90’s.”

Now, even those who initially tried to get more people to represent themselves said there are problems, fueled at least partially by lawyer’s fees that few of the poor can afford. It’s not uncommon for a lawyer to ask for a $5,000 retainer to take a divorce case. Fees vary in different parts of the state – anecdotes from lawyers and judges indicated that Fairfield County lawyers charge the highest prices – but it is difficult to find anyone who charges less than $200 an hour and not uncommon for lawyers to charge $500 an hour, lawyers and judges said.

Judge Solomon said a day’s worth of hearings in a divorce case can end up costing each litigant $5,000. Even middle-class people, he said, can’t afford that.

“How do you make it on $60,000, paying $10,000?” Judge Solomon said.

Legal services organizations can’t keep up with the number of people seeking help, said Patricia Kaplan, the executive director of the New Haven Legal Assistance Association. To deal with the overflow, the association holds classes on pro se representation in English and Spanish.

“We have fewer resources to do family services,” Ms. Kaplan said. “We give a lot of pro se advice to other people so they can represent themselves.”

The North Haven mother, for instance, said she was rejected by the New Haven agency, despite being unemployed.

“I feel like I’m getting a raw deal,” she said. “I applied to legal aid for help, I applied to women’s rights services for help and they both denied me.”

These days, it’s not just the very poor who are doing their own divorces. As fees rise, more people who are well above the poverty line have chosen to go pro se, judges and lawyers said.

Some lawyers said it isn’t fair to point the finger at them. Sarah S. Oldham, a Westport lawyer who is the former chairwoman of the family law section of the Connecticut Bar Association, said fees have risen at a similar rate to other goods and services, and it is often litigants, not lawyers, who make cases contentious.

“It’s very convenient to blame the lawyer,” Ms. Oldham said.

Whoever is to blame, the increased numbers of pro se litigants have created headaches for the court system. Pro se litigants generally take much more time than lawyers to make their cases. And judges worry about where to draw the line between nudging a party back on track and giving legal advice from the bench.

Pro se divorces, Judge Solomon said, sometimes devolve into a free-for-all.

“The parties often have no clue as to proper procedure,” he said. “They start a question, but it turns into a narrative.”

People who are paying for lawyers also lose out when litigants drone on about irrelevant matters. At $500 an hour, sitting on a cold, hard bench in Family Court listening to a pro se litigant waste time can be very costly.

The outcome of a pro se litigant’s case often depends on the judge. Some judges said they spend extra time with pro se litigants to make sure they know what they’re doing. If an agreement is questionable, the judge may refuse to approve it. And some judges ask lawyers to step in when a case is particularly lopsided.

Mr. Garlinghouse, the New Haven lawyer, said he has been asked to intervene in cases where pro se litigants are being hurt. In other cases, he said, he has watched helplessly as divorces tilted dramatically against one party.

“I’ve been in court and seen people crying in frustration,” he said. “People may have a good case, but they can’t explain it to the judge.”

People who represent themselves sometimes feel like the system is stacked against them. Josue Bonilla of Woodbridge walked out of a court hearing in August in which his child support had been raised by more than $100 and said he had gotten “burned.”

I lost everything,” he said.

A lawyer could have helped him, but he said a lawyer wasn’t an option.

“I had no choice,” he said. “Can’t afford it.”

The increasing number of pro se litigants is a problem without an easy solution, judges and lawyers said. The Judicial Branch formed committees in the last 10 years to figure out what to do about the increase in pro se representation, but their recommendations, many of which have been implemented, have not markedly changed the system.

Instead, the parties involved have had to adapt. Court officials have worked to make courthouses easier to navigate and lawyers have done more pro bono work or charged certain clients reduced rates. Sometimes, lawyers allow clients to pay for some services, but not others.

Any large-scale change will likely be costly, lawyers said. Without changes, however, some said the system sends the wrong message.

“Why can’t a woman who is in an abusive marriage and makes $30,000 get a lawyer, if a person charged with selling dope can get one?” Ms. Polan asked.

About  The Author

AVI SALZMAN

Article previously published in New York Times

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