People seeking divorces in Florida are turning their backs on lawyers in growing numbers. In 1980, about 25 percent of Florida divorces featured one or both spouses going pro se; last year, the figure was about 65 percent. Experts say the do-it-yourself trend is creating big problems for lawyers, judges and the divorce-seekers themselves.

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April 6, 2001

Florida law allows nonattorneys to represent themselves in divorce cases, but it can be costly

Tom Collins

Miami Daily Business Review

April 6, 2001

Pompano Beach, Fla., lawyer Barbara Curtis doesn't rely solely on divorces for her economic survival, and that's lucky for her. In the past few years, a growing number of prospective clients have told her they can get unhitched just fine without her help. As a result, Curtis slashed her divorce retainer fee from about $1,200 to just $500.

"People come in and say, 'Why should I pay you when I can do it myself?" laments Curtis, who estimates that do-it-yourself divorces are costing her solo practice $20,000 a year in revenues. "It's cheapened our services tremendously."

People seeking divorces are turning their backs on lawyers in growing numbers. In about 65 percent of Florida divorces last year, one or both spouses represented themselves in court, according to the State Court

Administrator's office.

In contrast, only about 25 percent of divorces in 1980 featured one or both spouses going pro se, according to a 1992 American Bar Association study. Most of the increase in pro se cases has occurred in the last few years, says Steve Berenson, a law professor at Nova Southeastern University near Fort Lauderdale.

The trend is sure to have a big impact on Florida's divorce industry, which feeds countless lawyers and other professionals and service providers.

Florida has among the nation's highest divorce rates. According to statistics from the National Center for Health Statistics, the national divorce rate in 1999 was 4.1 per 1,000 residents. According to the

Florida Department of Health, the state divorce rate was 5.3 per 1,000 residents in 1999, down from a peak of 7.3 per 1,000 in 1980.

While the state's divorce rate has fallen, the number of divorces has grown with the swelling population, from 71,578 divorces in 1980 to 80,983 in 1999. John Crouch, executive director for Virginia-based Americans for Divorce Reform, ranks Florida the 10th highest in the nation.

Experts say the do-it-yourself trend is creating big problems for lawyers, judges and the divorce-seekers themselves. Frequent filing errors by pro se litigants, and the resulting delays, have exacerbated family court backlogs and forced judges and judicial staffers to spend time undoing the mistakes.

Clients sometimes end up hiring lawyers to repair the damage -- and then resent the large legal bills. Pro se mistakes often end up hurting the divorcing parties and their children financially.

As a result, divorce lawyers typically try to dissuade prospective clients from going the pro se route. Many refuse to accept divorce clients in cases where the other spouse is going pro se.

COMPETITION FORCES DISCOUNTS

While the number of Florida family law practitioners statewide has hit

4,000 and continues to grow, the pro se boom has intensified competition for a shrinking pool of clients. Ralph B. Fisher, a family lawyer in Lutz, Fla., near Tampa, says the growth of pro se has forced some of his competitors out of the divorce business. "I see lawyers who are desperate for business charging $500 for a divorce and having no idea what they're getting into," Fisher says. A danger of doing divorces on a cut-rate basis is that time-consuming complications can arise, forcing clients to pay more, lawyers to pocket less, or both.

Peggy Schrieber, a professor at the University of Florida law school, says the driving force behind the rise of pro se divorces is that many people simply can't afford to hire a lawyer -- even though a lot of those people would like to. Experts say a couple with an annual income of $50,000 might spend about $10,000 in legal fees and costs for an uncontested divorce, but a variety of factors could drive costs much higher. By comparison, the simplest pro se divorce costs less than $300 in forms and court costs.

"It would be nice if everyone could have a lawyer, but the economics are

completely out of the question," Schrieber says.

Some divorce lawyers say attorneys have only themselves to blame for the pro se trend, having refused to shift away from an adversarial litigation process that inflates legal costs. "Unless family attorneys begin to change their thinking, the problems they are experiencing are going to get worse," says Gerald Deutsch, a Fort Lauderdale family lawyer and mediator who recalls a case where a white-collar professional spent $250,000 on his adversarial divorce.

Self-representation is hardly new. There have always been independent, desperate or foolhardy souls who choose to argue on their own behalf; the U.S. Constitution gives them the right to do so. But many observers say pro se is booming like never before.

PRO SE PROS AND CONS

Broward Circuit Judge Linda Vitale, administrative judge for Broward's family division, says that in 32 years of practicing law she's never seen as many cases in which both parties in a divorce are pro se. She doesn't necessarily frown on self-representation. For couples with few assets and no children, who haven't been married long and where neither party seeks alimony, pro se can work fine, she says.

Broward Circuit Judge Robert Carney says he even enjoys pro se cases. "The pro se rules are a little more relaxed, and judges can be more proactive," he says. Still, Vitale and others say the increasing volume of pro se cases is straining the courts. "It's a lot more work," says Philip Schlissel, a general master and hearing officer in Broward's family division. He says the courts badly need more judges, general masters and support staff to handle the extra paperwork associated with pro se.

Schlissel's office deals with post-dissolution motions like changes in visitation. He sees many people who had lawyers during their divorces, but who ran out of money and must settle their lingering disputes pro se. Their fumbling efforts create additional work for the court staff.

Vitale says she has to be extra-attentive in reviewing pro se divorce filings because mistakes and omissions are common -- even on seemingly easy issues like whether a couple has minor children. When an error or omission is caught, judicial staff must spend time amending the self-help forms used by Florida counties to assist pro se litigants. That creates delays.

PIECEMEAL LEGAL SERVICES

To head off such problems, Vitale encourages pro se litigants to get at least some legal counsel at an early stage. People really need a lawyer to help them correctly draft pre-hearing settlements and other key documents, she says. Many people realize this, and seek out attorneys to give them partial assistance with their divorces -- but not to handle the whole process. That has created a dilemma for attorneys.

Some divorce-seekers take advantage of the free initial consultations traditionally offered by divorce lawyers to get the preliminary guidance they need to go pro se, says Robert Hannan, a Fort Lauderdale sole practitioner. Then they bolt for the nearest court self-help unit, where they can purchase the forms and obtain the assistance and private counseling they need to go pro se. Hannan complains that he's spent too many hours giving free advice to people who choose to go pro se. Because of that, he's considering establishing a fee for initial consultations.

Fisher already has adapted to the new market reality. He charges $100 for a one-hour consultation, during which people can ask how to file pro se. "Anyone doing free consultations is an idiot," he says. Still, many divorce lawyers worry that people often do a poor job of representing themselves in divorce cases. They typically advise prospective clients against going pro se because so many things can go wrong.

Hannan says he tries to avoid clients whose spouses are going pro se, because he finds the pro se spouses hard to work with. "I may take a position that's very reasonable, both legally and factually, and they'll look at me like I'm crazy because they don't grasp the issues," he says with exasperation. "Sometimes it's a nightmare."

James Denman, a Fort Lauderdale sole practitioner, says pro se divorce seekers often hurt themselves by doing what they think is the noble thing for their spouses and children. "They don't want to drag their spouse through the mud, and will suck it up for the benefit of the kids," he says. For instance, some people choose not to raise the issue of their spouse's adultery. While Florida is a no-fault state, adultery remains a relevant factor in determining alimony. Without the involvement of a lawyer, Denman says, there's no one to tell them that forfeiting the leverage of an adultery claim can cost them dearly.

REPAIRING THE DAMAGE

Pro se litigants frequently turn to family lawyers only after they've severely damaged their cases. Caryn Grainer, a Hollywood, Fla., sole practitioner, recalls one pro se divorce seeker who agreed to pay 55 percent of his income in alimony and child support in the divorce settlement, which the judge approved. When the man later realized this was more than he could afford, he went to Grainer, hoping she could undo the damage. Grainer reluctantly told the man that he was out of luck. The judge, she said, would only modify the settlement if his financial circumstances changed dramatically due to sickness or loss of his job -- as any decent lawyer would have told him during the settlement phase. "You sometimes feel very sad for them, but judges want those final judgments to be final," she explains.

Lawrence Barron, a sole practitioner in Sunrise, Fla., notes that it can be lucrative for lawyers to hire on to repair damaged cases, because these cases often require complex and time-consuming litigation. Still, this is a mixed blessing. "Lawyers get a bad reputation -- not their own fault -- because now people have got to spend a lot of money to ameliorate their damages," he says.

While the rise of pro se divorces has adversely affected the practices of family lawyers who serve people of modest means, the trend has had little impact on well-established divorce lawyers with affluent client lists, says Cynthia Greene, a board-certified family lawyer in Miami. If clients are willing and able to pay her $375-per-hour fee for handling a divorce, Greene says, there probably are investment portfolios, children, boats, and vacation homes involved. Affluent people like this know they can't afford not to have a good lawyer, she says.

SELF-HELP OFFICES

Nevertheless, courts around the state have recognized that many people are determined to file pro se. To try to smooth out the inevitable bumps, the Florida Supreme Court has encouraged counties to establish self-help units and simplify pro se forms. Every Florida county now has a self-help unit, where people can buy the divorce forms and get help in filling them out. But Ky Koch, immediate past chair of the Florida Bar family law section and a partner at Koch & Harrington in Clearwater, says the size, budget, resources and quality of services of these units varies sharply.

In Broward County, which launched its pro se self-help unit about six years ago, the unit assisted 2,650 pro se litigants last year. Family court administrator Thomas Genung, an attorney, said that was fewer than in previous years, because budget cuts forced him to trim his staff. This year, Genung and his five-person team, which includes two other attorneys, expect to assist more than 4,000 pro se litigants.

Genung says he and his staffers are careful not to establish de facto attorney-client relationships by giving out legal advice. Instead, they conduct workshops and individual consultations, and flag incomplete information on the pro se forms. "Knowing the difference between advice and information is a very tricky thing," he says.

Even so, Genung finds it personally satisfying to assist people with a low-cost divorce alternative. "These are people who can't afford to spend $50 an hour, much less $300 an hour," he says.

Judge Vitale, however, has mixed feelings about finalizing settlements based on information in pro se forms. Standardized processing doesn't necessarily do justice to the increasingly complex issues involved in divorce law, she says. For example, in deciding which spouse gets the house, she must take into account complicated real estate calculations like fair-market value, obligations, liens and equity. "You didn't worry about such things in the old days," Vitale says.

While local self-help units are useful, experts would like to see divorce seekers become much better informed before launching into the pro se divorce process. Many people currently turn to do-it-yourself divorce books and Internet sites. But Berenson warns that legal advice on the Internet is unregulated and often unreliable.

MEDIATE OR UNBUNDLED

Another option is for lawyers to provide partial divorce services. Peggy Schrieber argues that the Florida Bar's Rules of Professional Conduct permit attorneys to do this. But lawyers are skittish about the ethical and liability risks of offering piecemeal services and want the Florida Supreme Court to clarify the issue. "Lawyers think, 'If I handle one part of a divorce and something else goes wrong, will I get blamed?' " Schrieber says.

The supreme court currently is considering rules revisions that would give lawyers a green light to unbundle services and provide partial divorce help -- without becoming the divorce client's attorney of record. If the changes are approved, a pro se divorce seeker could hire an attorney solely to prepare, for example, a qualified domestic relations order -- a notoriously tricky document required for dividing up pension payments, Schrieber says.

Still, Gerald Deutsch says the legal profession needs to do much more to win people back from pro se divorces, particularly in terms of bringing legal costs down. He criticizes his colleagues for their reluctance to experiment with cheaper alternative dispute resolution models.

Deutsch says he's enjoyed success with a hybrid mediation/litigation model.

During the most contentious phases of a divorce, he serves as a mediator, which costs less than his services as an attorney. Using this approach, a middle-income couple who would pay $7,000 to $10,000 to litigate a divorce probably would pay him no more than $1,500, including court costs, Deutsch says.

Still, Koch insists that Florida is in the vanguard of assisting people with pro se divorces. "The legal system has reacted quite well to the realization that 99.9 percent of the people who are using the pro se system don't have a pot to pee in," Koch says. "They don't need a judge to divide zero by two."