AUSTIN (CN) - Against the objections of the State Bar of Texas, the state Supreme Court approved divorce forms for indigent pro se litigants on Wednesday.
The State Bar of Texas had asked the court to stop its work on the forms, but the justices rejected
that request in February 2012.
They voted 5-3 nine months later to approve the uniform forms.
"The following set of uniform forms, Divorce Set One, is approved for use in uncontested divorces that do not involve children or real property," the order states. "Use ofthe approved forms is not required. However, trial court must not refuse to accept any of the approved forms simply because the applicant used forms or is not represented by counsel. If the approved forms are used, the court should attempt to rule on the case without regard to non-substantive defects."
The court says it is confident the forms will be useful "in addressing the burgeoning population of litigants who cannot afford representation and are unable to obtain representation through legal service provider."
Although it is clear the forms will not work in every circumstance, it believes such forms are an "integral" part of helping indigent litigants, according to the court.
"This belief is bolstered by the fact that 48 states have implemented some type of standardized family law forms," the order states. "The court notes the efforts of both the State Bar and the Family Law Section in proposing other solutions to the issues facing indigent pro se litigants, including improving the methods used to match those litigants with pro bono attorneys. While the Court recognizes that obtaining legal representation, pro bono or otherwise, for every pro se litigant would be ideal, the resources needed to meet the demand are simply not available."
Over 20 percent of the 58,000 family law cases filed in Texas were pro se in 2011, the court said.
"Even if every one of the 4400 members of the Family Law Section were to take on one of these cases pro bono annually, tens of thousands of litigants would remain unserved each year," its unsigned order states.
Justice Debra Lehrmann expressed her concerns over two aspects of the forms in a dissenting opinion joined in part by Justice Phil Johnson.
"First, the forms expressly state that they are '[ajpproved by the Supreme Court of Texas,'" Lehrmann wrote.
"I believe that the court's express endorsement will inadvertently increase the amount of pro se litigation in our family courts among parties with the means and the need to retain counsel," she added.
Lehrmann also disagreed with the form awarding all employment benefits, including pension and profit-sharing plans, to the spouse who earned it.
"It seems particularly likely that in the cases in which these forms will be used - where there is no real property - pension benefits will be the most significant asset in community estate," Lehrmann wrote. "Thus, think it is likely that the court's approval of this model decree will result in property divisions that violate the mandate community property be divided 'in a manner that [is] just and right.'"
Johnson also wrote a separate partially dissenting opinion, joined by Justice Don Willett.
"In my view the form should at minimum provide an option allowing the trial court to divide such employment benefits equally between the spouses to the extent the benefits were earned during the marriage," Johnson wrote. "I would annotate the forms simply as being promulgated by or approved by the Uniform Forms Task Force of the Supreme Court of Texas. My concern is that by annotating the forms as being approved by the court, the court has effectively committed itself to maintain the forms." (
The proposed forms, which still require final approval, will be published in the Texas Bar Journal with a period of comment lasting until Feb. 1, 2013.