PRO SE DIVORCE LITIGANTS

• Published date: 01 October 2004
• Author: Carolyn D. Schwarz
• Date: 01 October 2004
• DOI: http://doi.org/10.1111/j.174-1617.2004.tb01331.x

STUDENT NOTE

PRO SE DIVORCE LITIGANTS

Frustrating the Traditional Role

of

the Trial Court Judge and Court Personnel

Carolyn

D.

Schwarz

With the increased number

of

divorce litigants appearing pro se

in

the past century, trial court judges and court per-

sonnel are forced to deal with their conflicting obligations with more frequency.

It

is virtually impossible for a trial

court judge to ensure all litigants have a fair and meaningful trial without compromising their neutrality. Likewise,

court personnel are allowed to give out legal information but not legal advice, with the definition

of

legal information

and advice not neatly packaged into two separate and distinct categories. Consequently, changes must be made. This

note suggests various solutions that can be imposed to either reevaluate the role of trial court judges and court

personnel

so

that they no longer have conflicting obligations and are able to accommodate the needs of the prose litigants

or implement services that can provide pro se litigants with other avenues of obtaining information and assistance.

Keywords:

pro

se;

selfrepresenfution; divorce; judiciul rieutrulih

;

court

per.sonize1

The self-representation phenomenon

is

a

reality courts

must

respond

to

in

order

to

fulfill

their

mission to resolve disputes

and

maintain their legitimacy

and

credibility.'

I.

Introduction

How

does

a

trial court judge maintain judicial neutrality while still ensuring that pro se

divorce litigants are afforded a fair and meaningful trial? With the increase in pro se divorce

litigants in the past century, this question has become increasingly difficult

to

answer.

It

is

virtually impossible for

a

trial court judge to ensure pro se divorce litigants are afforded the

right to

a

fair and meaningful hearing without appearing to compromise his or her impartial-

ity.

As

a result, this area has become highly controversial, and the only consensus is that

changes in the judicial system are necessary; steps must be taken to account for the growth in

the number of pro se divorce litigants and the effect this has upon the litigants themselves, the

court, and the court staff.'

The main problem surrounding pro se litigants is that most of them do not have the legal

knowledge needed to maneuver their way through the court system.3 They need help and will

look anywhere they can to get it. They will look

to

the court staff, which is forbidden from

giving legal advice to litigants, and to the judge, who must remain neutral, and basically

everywhere they look for help, barriers are erected.

As

a result of conflicting obligations that

are imposed upon judges and the court staff, self-represented litigants are prevented from

making informed deci~ions.~Ultimately, they are thrown into a system that is unfamiliar and

difficult for even attorneys to properly maneuver their way through after

3

years of law

school, the bar exam, and firsthand experience.

How

then can pro se litigants be expected to

know what they are doing?

FAMILY

COURT

REVIEW,

Vol.

42

No.

4,

October

2004

6.55672

DOI:

10.

I

177/1531244.5042678Y6

0

2004

Association

of

Family and Conciliation

Courts

655

656

FAMILY

COURT REVIEW

The judicial system needs to provide for different programs that will either educate pro se

litigants,

so

that they are capable

of

proceeding

in

court,

or

provide a means by which they

can receive legal advice and help. When the judicial system was created,

it

was meant to be

adversarial, and it was implied that litigants would have attorney representation.> Things

have changed substantially over time, and this

is

no longer the norm. The role of the trial

court judges and court personnel must be changed

so

that competing obligations are harmo-

nized to provide a workable model for the current-day structure of the court system.

Part

I1

of

this article will summarize how many divorce litigants appear pro se and the rea-

sons why. Part

I11

will provide an overview of the tension imposed on trial court judges and

the need for their conflicting obligations to be harmonized. Part

IV

will discuss the problem

imposed on court personnel, namely, that they are allowed to provide litigants with legal

information but not legal advice, the definitions of which are often in conflict with one

another. Part

V

will describe various solutions that can be imposed either to reevaluate the

role of trial court judges and court personnel

so

that they no longer have conflicting obliga-

tions and are able to accommodate the needs of pro se litigants or to propose services that can

be implemented to provide self-represented litigants with other avenues

of

obtaining infor-

mation and assistance. Some of the solutions that will be discussed are those that other coun-

tries facing similar pro se problems have tried. These options will limit the need for assis-

tance from trial court judges and court personnel, while leading to a decrease in the number

of times both groups are confronted with the Hobson’s choice of which obligation imposed

upon them will be upheld and which will be violated.

11.

How

Many Divorce Litigants Appear

Pro

Se and

Why?

Divorce litigants appear pro se for one of the three following reasons. Those of the first

group choose to represent themselves

even

though they can afford an attorney. Those of the

second group cannot afford an attorney, but even if they could, they would still choose to rep-

resent themselves. The last group is composed of people who represent themselves for lack

of other options, as they cannot afford an attorney. These people do not choose to represent

themselves, they do

so

by default, and if they had the money, they would choose to be

represented.

In

1991,

Sales et al. conducted a study in Maricopa County (Phoenix) Arizona, which

found that

45%

of divorce litigants chose self-representation because they felt their cases

were simple and could handle them on their own.6 It is likely this group considered their

cases simple because there was little conflict, property that could easily be divided,

“a

mar-

riage of short duration,

no

spousal support, and

no

children.”’ The same study reflected that

22%

implied that they had money to obtain an attorney but chose not to, and

33%

represented

themselves because they could not afford to hire an attorney.’ While this study did indicate

that more litigants chose self-representation for reasons not determinative upon finances, a

significant percentage of the group represented themselves not because they chose to, but

because they could not afford an attorney9 and likely did not have an income below the pov-

erty line and were thus ineligible for government assistance.’” It is also worth noting that this

study did indicate that “desire

to

control the case, lack of knowledge about how to find an

attorney, familiarity with the law, or dissatisfaction with their attorney if they started the case

with one representing them,” were not factors that influenced any of the litigants in this study

to choose self-representation.