The sad reality is that 70 percent of the people involved in divorce and child custody cases in California do not have an attorney. Why? The answer is simple: Most people can’t afford an attorney. Yet, going to court without a lawyer on such complex and important matters as divorce, child custody, child support and property rights is like doing your own hip replacement surgery.
Sacramento’s family court, under the wise leadership of Judge James Mize, serves the community well. Yet, the family court cannot remedy two critical issues: First, family law is so complex that it is impossible in some cases to achieve justice without a lawyer. Second, the state’s effort to simplify family law by requiring forms has backfired. Today, there are more than 200 family-law forms, making the law incomprehensible to anyone but an expert.
Are more lawyers headed for family court? No. Many lawyers disdain family law, with its raw emotions and needy clients. Moreover, the reason so many people go without a lawyer in family court is not a shortage of lawyers, it is a shortage of cash.
Don’t blame lawyers. They have to make a living.
The answer is not asking lawyers to take more family-law cases for free. We don’t ask physicians, engineers or plumbers to take cases for free. It is true that lawyers are encouraged to help the poor, and most lawyers give free advice. It is unrealistic, however, to expect lawyers to gratuitously carry the burden of lawyerless litigants.
Nor does the answer lie in creating a cadre of government-funded family-law lawyers, similar to the public defender system in criminal law. Even if this is a good idea – a hotly debated subject – the odds of it happening are slim.
If we are not likely to see an influx of attorneys for people in family court, then the attention of policymakers should shift to a problem we can solve: the proliferation of family-law forms by the California Judicial Council.
The use of forms started in the 1970s as an effort to bring uniformity to the practice of family law. Today, however, the growth of forms has made family law even more difficult. Defenders of the forms will say, “But only a fraction of the 200 forms are needed for a divorce.” My answer is, “Tell that to someone who is not a lawyer! Experts know that only a fraction of the forms are needed; the public doesn’t. People without a lawyer don’t know what forms are relevant.”
Defenders of the forms retort, “But there are instructions on using the forms.” My answer is, “I can find instructions on how to build a rocket ship, but that doesn’t mean I’ll understand the instructions. I’m a lawyer, not a rocket scientist.”
The family-law forms are so complicated and numerous that no instructions will solve the problem.
Here is an example of California’s mind-numbing family-law forms:
The parties must complete and file with the court (or not file, depending on the form), and serve on the opposing party: Family Law (FL) 140: Declaration of Disclosure (there must be a preliminary and a final declaration of disclosure, unless the final declaration is waived by filing another form, FL-144, or filing a Marital Settlement Agreement that waives the Final Declaration of Disclosure); FL-142: Schedule of Assets and Debts (four pages of highly detailed financial information); FL-150: Income and Expense Declaration (four pages of highly detailed financial information that overlaps the information required on FL-142); FL-155: Financial Statement (Simplified), if you qualify to use this form instead of another form; FL-160: Property Declaration (four pages of highly detailed financial information that largely duplicates FL-150 and FL-140).
Do you have a headache yet?
The amazing thing is that so many lawyerless litigants somehow navigate the labyrinth of financial and other forms to accomplish their goals in family court. Countless others simply give up. Many try their best, but do not receive justice. Not because the people at family court don’t care, but because our form-driven family law system is unworkable.
We can’t do much to alleviate the shortage of attorneys in family court. We can do something about the proliferation of family-law forms. The forms are a roadblock to justice.
John E.B. Myers is a professor of family law at University of the Pacific’s McGeorge School of Law.