In recent years, an increasing number of people seeking divorces have dispensed with lawyers. What explains this trend? Judi McMullen and Debra Oswald set out to find some answers by examining a random sample of 567 divorce cases from Waukesha, Wisconsin. Consistent with national trends, they found high percentages of pro se litigants (43.9 percent of husbands and 37.7 percent of wives). Given the relative prosperity of Waukesha County, these high rates of self-representation are probably not just a matter of litigants not being able to afford a lawyer. Rather, the data showed that people tended to represent themselves in the simpler sorts of cases. When complicating factors like minor children were present, litigants were more likely to obtain counsel. According to McMullen and Oswald, “This suggests that divorce litigants have good, common sense notions about when self-representation is feasible and when it is not.”
The data were not as clear regarding the effects of hiring counsel. For instance, cases with represented clients took longer to complete, but this may simply reflect the fact that these cases tended to be more complex.
McMullen and Oswald reported their research in a recently published article entitled “Why Do We Need a Lawyer? An Empirical Study of Divorce Cases,” which appeared at 12 J. Law & Fam. Studies 57 (2010). The article is also available here on SSRN.
I tend to watch the trends in cases in our county (Winnebago) as well. Through June 9, 2010, as to the number of new filings, 56 percent are unrepresented. Of the 44 percent with attorneys, the split is 55 percent with one attorney, while in the other 45 percent of the filings each party is represented. Anecdotally, I hear from family lawyers that they have seen an upward trend in the number of consultations versus being retained. The primary concern with unrepresented parties is that they often do not have the appropriate paperwork completed to proceed with a default divorce and the matters are often adjourned once or twice (I see more defaults with this group since in the majority of those filings the parties have very few contested issues). In our county, fortunately, the county bar has set up a legal clinic in which we likely refer from the court 20 to 30 cases each month to assist in getting the paperwork completed or simply getting some free legal advice. As more and more legal clinics surface, we may see this trend continue or the gap between represented and unrepresented grow.
I was unrepresented, as was my ex-husband, at our 2005 Waukesha County divorce (this was more than a year before I started law school), and we fit the profile–no children, simple asset division (we did have a house but as neither of us desired to nor could afford to keep it, we sold it and split the proceeds), and, as Wisconsin only recognizes no-fault divorce, nothing legally significant to fight over. (We actually used rock/paper/scissors to divide the few small possessions we both wanted–we both realized it would be far less expensive to divide and re-buy than it would be to get attorneys to fight it out). The clerk told us we had some of the cleanest pro se paperwork she’d ever seen, and we were divorced amicably at the pretrial conference. Doing my own divorce actually provided one of the catalysts for me to go to law school, and just getting it done without fighting or paying other people $200 an hour to fight on our behalf means my own stepdaughter and my ex-husband’s stepdaughter can be best friends without awkwardness.
I haven’t read the article, but I wonder if Waukesha’s very good self help resources (including a straightforward, plain-English flowchart-style Web site) change the pro se population there. I am not sure if I would have tried a DIY divorce had I lived in Milwaukee County at the time, as Milwaukee doesn’t have nearly as helpful a Web site and I had no idea at the time where to find even the relatively minimal guidance I needed.
This article and the comments represent simplistic answers to complicated questions. It is a myth that people in Waukesha County are mostly well-off. WC has many very poor people.
In fact, this kind of theory is insulting to lawyers. Indeed, once you give people “free” lawyers – paid for by taxpayer dollars – why would they hire private counsel???
The full-length article does not claim that people in Waukesha County are “mostly well-off.” It cites statistics showing that while the median income is significantly higher than the national average, there is a wide range of incomes from very low incomes to very high ones. The diversity is what made the county a good one for study — there are enough poor people to study how many low-income people represent themselves, and enough high-earners to examine whether people with enough money to hire lawyers might decline to do so for other reasons.
“Free lawyers” are not generally available for civil cases like divorce, which is why people who can’t afford lawyers have to represent themselves or forgo the case.
I would also suggest that people would be more inclined to get a lawyer if young children are involved. This can be a very complex and stressful situation.
There may also be factors to consider like cost of an attorney and/or the fact that some people just want the divorce and pain of that separation to go away as quickly as possible. As you mentioned, when attorneys get involved the proceedings take longer. And again could be the complexity of the paticular divorce.