Texas Lawyer | By Angela Morris
Texas Supreme Court Chief Justice Wallace Jefferson has asked lawmakers to delay taking action on House Bill 2878, which targets the controversial pro se divorce forms promulgated by the high court. But supporters said that the bill would address issues with the forms.
At the House Judiciary & Civil Jurisprudence Committee's April 8 hearing, Jefferson and Justice Nathan Hecht voiced concerns about the bill, six witnesses said they opposed it, and three witnesses associated with the Texas Family Law Foundation testified in support of the bill.
Family law attorney Amy Lambert, a partner in Tull & Lambert in Austin who said she spoke for the Texas Family Law Foundation, testified that she recently reviewed divorce forms for a man who had $100,000 in retirement, while the wife had nothing. Under the current divorce forms, she said, the wife wouldn't know about that asset unless the husband voluntarily disclosed it.
"That's a concern for me," Lambert said.
The bill would require disclosure. But Susan Sheppard, a retired associate judge, opposed the bill. She said she heard family law cases for 25 years and saw a "huge increase" in pro se litigants, most of whom were poor." This bill doesn't prohibit the use of standard forms, but it just sets up a lot of traps. It sets up 'gotchas' for the litigants, for the clerks, for the judges," Sheppard said.
Under HB 2878, courts couldn't grant relief or enter orders based on a form that "does not comply with substantive or procedural law." They couldn't accept a form if a litigant prepared the form inconsistently with the instructions or used the form for purposes "other than the use authorized by the order adopting the standardized form."
Among other things, the bill would require a pro se litigant using a high-court form to provide information about retirement accounts, and it says that self-represented litigants are "subject to the same substantive and procedural law as a person who is represented by an attorney." [See "Fight Over Family Law Forms Moves to Legislature, "Texas Lawyer, March 11, 2013, page 1.]
Supporters said the bill would ensure that courts treat pro se litigants like other litigants, people use the forms correctly and divorcing spouses know the value of each other's retirement assets.
But opponents said HB 2878 would make it harder for pro se litigants to access the courts, and it would instruct courts to treat litigants differently just because they used a high-court form.
Supporters
Lambert said she sometimes reviews forms for pro se litigants, and they often make errors, or they modify the forms by striking through parts of the form or adding amendments or exhibits. She said HB 2878 would address that issue because a court couldn't accept a modified form.
When introducing his bill, Raymond said it wouldn't interfere with the Supreme Court adopting standardized forms, and it would reaffirm that people have a right to represent themselves in court.
The bill targets Supreme Court forms, not other commercial forms, because the Texas Constitution gives the high court authority over the procedures used in trial courts, he said.
"When a court exercises its power under those laws, it means something," Raymond said.
Texas Family Law Foundation lobbyist Steve Bresnen said at the hearing that the biggest policy issue in the bill is that self-represented litigants should be subject to the same law and procedure as everyone else. He said it's "wrong" to have different rules for different litigants."
A lot of the concern about this bill, I think, is misplaced and really doesn't focus on the language of the bill," he said. Bresnen added, "It's amazing to me people don't want low-income people to know if they have retirement benefits coming to them."
Opponents
The chief justice told committee members he had "trepidation about the bill" because it requires a court to reject a form if a litigant fills it out incorrectly, and it specifically refers to high-court forms, not forms from other sources.
Trish McAllister, executive director of the Texas Access to Justice Commission, said that she thinks the bill would remove a judge's discretion to instruct pro se litigants to correct their forms immediately, and the bill could affect judicial efficiency. She added that sometimes spouses think their divorce is uncontested, but it becomes contested. McAllister said it "doesn't make any sense" that the bill says a court couldn't accept the litigant's forms.
Melissa Cook, a family law attorney, said she thought HB 2878 would violate equal protection rights because the bill creates "hurdles" for people using the high court's forms but not litigants using other forms or those with lawyers.
Hecht said he's "particularly concerned" about the provision that says people using the forms are subject to the same law and procedures as someone represented by a lawyer.
The high court gets many handwritten petitions that aren't in the "proper form," he said.
"To single out self-represented litigants and to sort of wag your finger at them and say, 'We are really going to apply these rules to you,' seems to me to be inappropriate," Hecht said.
Jefferson said the high court is reviewing public comments about the forms and he thinks it would be "very useful" to see what happens with the forms in the next two years, when the Legislature convenes again.
