Something significant has been going on in Wisconsin family courts in recent years. Fewer and fewer divorce cases are being filed, but a growing percentage of those that are filed do not have an attorney involved. There are many reasons for both of these phenomena.

Why the Change?

There are fewer divorces because there are fewer marriages; more people are choosing to live together, rather than get married, and when those relationships dissolve, the courts are usually not involved. In addition, people are getting married later in life, and history shows that folks who wait longer to get married are more likely to remain married.

There are many reasons, too, why people are choosing to handle divorce cases on their own. No doubt the cost of hiring an attorney, and the common mis-perception that attorneys are only interested in stirring things up, plays a part; some people are willing to take a chance of doing things on their own, rather than trusting an attorney to help them.

But by far the biggest factor is the availability of self-help resources. The shelves of the public libraries are stocked with do-it-yourself books, and the internet has hundreds of sites dedicated to the “be-your-own-lawyer” approach.

The result is an explosion of these cases. In 2005, in one eastern Wisconsin county, 50 percent of all post-judgment motions, and almost 40 percent of all divorces, were handled without an attorney, while in Dane County, in almost 80 percent of family law cases, at least one party did not have an attorney. Some studies have indicated that those percentages have increased during the recent economic downturn. While the percentages are lower in small counties, the trend is present here, as well.

The do-it-yourself method – the technical term is “pro se” – can work in some situations. For people with the patience and tenacity to deal with the voluminous paperwork, who are willing to take the time to fully understand the issues that need to be tackled, and willing to learn what needs to be done to take care of all parts of this important life event, the pro se approach might work.

The Problems With the Pro Se Approach

Pro se litigants take on enormous responsibility. First, they accept responsibility for understanding how the divorce system works, and learning how to maneuver through the system, without placing additional burdens on the court. They also assume responsibility for analyzing and resolving issues that, if handled poorly, may cost the parties thousands of dollars. Finally, they assume responsibility to do things right, so no one pays the cost of fixing mistakes many years down the road. A sign at the Green County Clerk of Court’s office emphasizes these responsibilities, warning that, while individuals are entitled to represent themselves in court, those who do are held to the same standards of professionalism that applies to attorneys.

Even the simplest case requires a small mountain of paperwork. The paperwork is more than a matter of mere formalities; the pleadings, agreements, disclosures and certificates all convey important information concerning important legal rights and responsibilities. One Wisconsin family court commissioner noted that pro se parties often have difficulty filling out the necessary forms on their own. “They almost never get them right on the first try, and almost always miss some things or miss some forms altogether.”

This has a big impact on the efficiency of the court system. As more and more people file their own cases, without any training in how to prepare their documents or present their case, things slow down dramatically. As judges and court commissioners spend more time dealing with these routine matters, there is less time available to handle other things that demand court time.

Mistakes can also cost pro se parties a lot of money, and often go unrecognized. One local attorney recently reviewed a marital settlement agreement prepared by pro se parties. “The terms of the agreement followed a standard format, and allocated the dependency exemptions for the children in what seemed to be a fair way” he said. “However, the arrangements would cost them more than $500 a year in tax savings.”

This is a common mistake. Not all that long ago, dependency exemptions resulted in relatively little in tax savings, and so little thought was given to who should get the exemption. However, changes to the tax laws have increased the value and have added refundable credits to the mix, and it is not unusual to see an exemption for a young child lead to significant tax benefits.

A divorce settlement can also affect a party’s ability to claim the earned income credit on their federal return. The credit, available only to taxpayers whose income is below a certain level, can make the difference between owing taxes in April and getting a refund as much as $3,000 each year, and a poorly drafted divorce agreement can torpedo this benefit.

An experienced legal advisor can also help avoid tax pitfalls in things like family support, the division of pension, 401(k), IRA and other retirement accounts, and capital gains taxes. An experienced family law attorney can utilize the family code and tax code to maximize the amount of cash available to both parties.

In cases where the parties own real estate, having a lawyer on board is essential. Real estate documents must be drafted with great care and precision; an error in a “simple” deed, such as a typo in a legal description, may not be discovered for many years, and can be very expensive to fix. It is far cheaper to get things right the first time.
 
The Internet is Always Right. Right?

The internet – the source of a lot of self-help resources – helps fuel the confusion. It has hundreds of sites with information on family law. Unfortunately, much of the information is wrong! It may be wrong because it does not apply to Wisconsin, it may be wrong because it does not fit the situation of the person looking for information, or it may be wrong simply because the person who prepared the website got it wrong. Unfortunately, on the internet, it is very difficult to distinguish bogus websites from legitimate ones.

The same is true about “advice” from friends and relatives. Folks who want to tell you about their similar experiences are trying to be helpful, but no two cases are alike, and so what happened in one case is not always a good indicator of what should happen in another.

Just because a lawyer isn’t required, doesn’t mean they aren’t useful

An experienced family law attorney, who understands the law, and why the law works the way it does, can help evaluate a situation and, often, come up with a variety of possible solutions to a given issue, each with its own advantages and disadvantages. One Wisconsin attorney compares the question to a medical issue:

“A lawyer isn’t required in a divorce, but people don’t need obstetricians to have a baby either. Women have been giving birth for several thousand years without professional intervention, and the baby will come out one way or another. But it is nice to have someone standing by to comfort the mother, ease her pain, distract the anxious father and control the scene. And it sure is handy to have a doctor around when things go wrong.”

The Bottom Line

For individuals who are conscientious about their responsibilities to one another, and to the court, and who are willing to accept the consequences should they fall short in any of these areas, the pro se approach might work. For others, foregoing the cost of an expert guide in the belief that it will save some money might be a costly mistake.

Dan Bestul is a Wisconsin divorce and family law attorney practicing primarily in Green and Lafayette Counties. He can be reached by e-mail at bestul@swwilaw.com.