Divorce Court Is the Villain, Not Your Ex

Earlier today, I was reading Harvard Law School's Access to Justice Lab, November, 2018 study, "Trapped in Marriage." It validated the notion that the divorce legal system is complicated. So complicated. And for most people, completely inaccessible. Heartbreak and major life changes already make the day-to-day difficult to navigate - add in an impossible system with very few alternatives to the traditional 'retained lawyer' status quo - and you get a majority of people frustrated, angry, demoralized, confused and financially strapped.

It doesn't matter where you reside in the US, there's procedural challenges in every part of the country. In some states you can't get divorced without going to court. Most states have differing procedure from county to county. States that do have approved "forms" offer little help on how to strategically complete, file and serve them. Filing fees are several hundred dollars (each). The waiting period to obtain court help or a judicial hearing on a child custody or child support matter is often 2 months or more. Not to mention, the documents that must be prepared to even obtain a court date are inaccessible, confusing and unnecessarily burdensome. And finally, some courts still require filings to be done by US Mail or in person. Who has time for that?

Even if you survive the mountain of paperwork, the very idea of settlement is stacked against litigants. In our culture, "lawyering up" means war and many lawyers head straight to court to get things "resolved." The mere act of filing a divorce is setting a lawsuit in motion - X versus Y. Hearings are public and to "win" - one spouse (or both) must throw the other under the bus. Mediation and other forms of alternative dispute resolution are rarely offered as an alternative and almost never mandated. Worse, when it is mandated, abuse survivors are often forced to sit in the same room as the spouse who they are seeking to escape. People who can hire a lawyer at the beginning of their divorce, often run out of money along the way and are stuck trying to navigate the rest of their divorce on their own.

And then, if you finally do come to an agreement or are "lucky" enough to get a trial date in this decade, the divorce judgment often times doesn't end things. There is very little education on the potential consequences of not following through to divide retirement plans, enforcing support orders, taking a spouse off the home loan, car registration etc. And even less information on how to do it.

The legal system is stacked against us. Approximately 90% of divorces have at least one self represented party. The average cost of divorce ranges from $15,000 - $27,000 (per person) depending on where you reside. This is a crisis and we have to solve it. Together.

Despite all of this. I don't think it's likely that the system will change anytime soon. I also think that to a certain extent, the system has to have a certain level of complexity. After all, we are dissolving the most complex financial contract most people will ever enter into. I am an optimist though. I do think that lawyers who have a conscience - or even lawyers looking for more satisfying careers - will and are pushing for change. The system will follow suit. Millennials care about social responsibility. They look for meaning in their work and are not afraid to make the personal - the professional. Experienced lawyers can lead by example, collaborate with other industries and listen to the fresh legal minds that are joining our profession.

In the meantime, there are several ways that we can begin to shift our practices to help make the system accessible and affordable. I submit that by doing this - we not only see happier litigants - but happier lawyers as well. When we are solving problems and tackling complex legal issues - we are much more satisfied than battling court clerks, fielding calls from angry clients and bogged down in stacks of paper.

Hello Divorce is my first experiment to make this change. By leveraging legal document assistants and software, clients can prepare the paperwork on their own. Instead of handing them the forms and saying "go", we rephrase the questions such that they are written in a manner that is understandable and avoids legalese. Example A: Form asks for "Community property retirement accounts." Question rephrased for divorcees: "List all retirement accounts (think: pension, 401k, 403b etc) that you contributed to during marriage with your employment earnings. Note some of these accounts may have existed before marriage and are partially separate property. That's ok! You still need to list them here." Granted there are nuances - life is not a straight line and these questions don't work for every situation. But you can certainly see how much we can cut down in lawyer fees. Not to mention the client feels empowered - instead of confused, scared and overwhelmed. When someone is going through a trauma as serious as divorce, any opportunity to feel empowered or in control - has the power to transform his or her life. Sound dramatic? Sure. But as a survivor of the legal system as a late teen (as a witness in a criminal case and plaintiff in a civil case) - I can tell you that the confusion and frustration re-triggered the trauma - every.single.day.

I don't have all the answers. Not even close. But I do believe that there are sustainable options for us to make a really good living without perpetuating the status quo and furthering the access to justice gap.