shlep: the Self-Help Law ExPress

Reprinted with the permission of the Missouri Lawyer’s Weekly:

Missouri Lawyers Weekly Copyright 2009 Dolan Media Newswires
July 17, 2009

Who’s using Missouri’s pro se divorce forms ? Most litigants have children, never called a lawyer.

Allison Retka
The litigants without lawyers stroll into the clerk’s office in tiny Dade County, plunk down thick packets of divorce forms and ask, “What in the world am I supposed to do with this?”

It’s a question Dade County Circuit Clerk Brenda Adams hears more each week, as pro se litigants trickle into her office in Greenfield, near Springfield. The litigants throw up their hands and ask for help, but there’s not much Adams and her clerks can do.

“We don’t have a law degree,” she said. “We’re sticking our necks out and helping them file these, and I don’t think we’re probably supposed to be doing that.”

Six months after the Missouri Supreme Court formally approved a set of do-it-yourself divorce forms, circuit clerks report mixed reactions about adjusting to new procedures for the state’s pro se population.

As to how big that population is, no known statewide statistics were available. But in St. Louis County Circuit Court, where do-it-yourself divorce forms have been available for years, pro se litigants filed 23 percent of the petitions for dissolution of marriage handled by the court last year.

Some clerks in outstate circuits, like Adams, still struggle with confused litigants touting incomplete forms who grow angry when clerks can’t answer their questions. Others maintain things are running smoothly.

And thanks to a survey more than 3,000 potential pro se litigants have completed since July 2008, a picture of a typical pro se litigant in Missouri emerges. She’s high school educated, makes less than $11,000, has kids and has been married less than five years. She never contacted a lawyer about her divorce because she thinks it’s too expensive to hire one.

But college graduates who make more than $50,000 also downloaded the forms. Twenty people with doctorate degrees surfed through the state’s Web site for self-represented litigants. St. Louis County Associate Circuit Judge Dennis Smith has turned away divorcing pro se litigants trying to divvy up millions of dollars in property.

“I told them to get lawyers,” Smith said.

Solo and small firm attorneys initially protested the expansion of court resources for pro se litigants, citing concerns that it would cut into their business. Others feared the litigants would harm themselves by filling out the forms incorrectly.

To Karl Timmerman, a solo attorney in Holden, the statistics about potential pro se litigants confirm both fears. Timmerman reviewed a set of data prepared by the Office of State Courts Administrators about the people looking at divorce forms at www.selfrepresent.mo.gov. Some of the figures stunned him, he said.

A majority of the people considering self-representation had children. Nearly half were married more than five years, which is more than enough time to accumulate marital property, he said. Half the survey respondents make $20,000 a year or more, which in many cases is more than enough money to hire a lawyer, he said.

“These are our clients,” Timmerman said. “What the data shows is you have upper-middle-class folks deciding, after not talking to a lawyer, that they’re going ahead and representing themselves in cases that involve children. I think that’s alarming.”

Liberty attorney Susan Long reviewed the figures and said she was shocked that 42 percent of pro se litigants reported the divorce forms were easy to use.

“They think they can handle it themselves,” said Long, a family attorney with Blessing & Long. “I don’t think they understand the complexity involved in dividing retirement or the documents necessary to transfer real estate.”

Mary Lou Martin, a Springfield attorney who heads up the Solo & Small Firm Practice Committee, said there’s the possibility wealthier people are using the forms to avoid having to pay an attorney. Some financial planners are telling clients about the do-it-yourself divorce forms, she said.

It’s also possible people are using the forms to set up advantageous post-divorce arrangements away from the prying eyes of lawyers, she said.

“If one spouse can negotiate their own agreement with a spouse, neither spouse has an attorney overseeing whether that’s a fair agreement or distribution of property,” Martin said.

Smith said he’s had to be vigilant about people trying to sneak “sweetheart deals” into divorce judgments. One man divorcing his wife of 40 years had a substantial pension that he should split with his wife. Instead he offered her just $2,000 a month in maintenance, Smith said.

“Some judges look at these less closely,” he said. “If you have a courtroom full of people, things can still slip through.”

Like court clerks, judges also are facing questions from confused pro se litigants looking for advice.

Leading up to the Solo and Small Firm Conference in the Ozarks, Martin’s secretary conducted an informal survey of every county in the state, asking if the courts have encountered problems with pro se litigants. Clerks in Knox and Worth counties said courtrooms can get tense as judges try to assist pro se litigants without offering them legal advice.

“Most of them want me to help them fill out the forms,” said Associate Circuit Judge David Munton, who serves the 28th Circuit. “I tell them I can’t do that. They want someone at the courthouse to do it for them and not charge them anything.”

Munton said he’s turned away litigants who failed to properly fill out their paperwork. In Martin’s survey, Dallas County reported its judges rejected the forms offered by nine out of 10 pro se litigants for the same reason.

“Anytime you’re dealing with a pro se litigant, it gets time-consuming,” said Jim Gibbons, circuit clerk in Knox County, in northeastern Missouri. He said a pro se litigant with a small claims case takes up more time and resources than a full-blown circuit court case.

Couples with few assets and no children use the forms just fine, he said. But when people with more complicated cases stride up to his desk, Gibbons issues his standard response.

“I left my magic wand and magical dust at home; you probably need to do some research,” he said.

In Holt County, in the northwestern corner of the state, Circuit Clerk Vicki Book declared the pro se forms a success.

“I’m thrilled so far,” she said. “I did not think it would work that well.”

Book sends anyone struggling with the forms to Mitzi Alspaugh, one of the two attorneys with offices in Holt County. Alspaugh said in Holt County and Jackson County, where she also practices, pro se litigants seem competent and professional in front of judges.

Smith, the St. Louis County judge, has dealt with more problematic litigants. He’s handled divorce forms scribbled on in pencil or covered with food stains. Litigants have misspelled the county they live in or neglected to mention children they had with other women.

“Probably 30 percent have something wrong,” he said of the forms submitted to him.

Smith heard a recent pro se case from a woman who had five children with five different men during her marriage.

The judge also has heard cases from pro se litigants who paid for the state’s free divorce forms, handing over between $25 and $300 for the papers. It’s upsetting that already poor people are forking over money for free forms, but the documents aren’t copyrighted, Smith said.

“We can’t stop them,” he said.

The pro se forms are a work in progress, said Allan Stewart, a St. Louis attorney and member of the Supreme Court Committee for Access to Family Courts, which created the forms. The committee is completing work on an educational DVD that will be issued to every circuit clerk’s office. The film shows litigants where to find the pro se forms and repeats a message repeated on the court’s Web site: It’s best to hire a lawyer.

“It’s our standard mantra,” Smith said. “People should not be representing themselves. That’s a bad idea. But you have the right to do it. If you do it yourself, these are the forms you have to use.”