Most Americans simply cannot afford legal representation in the traditional model, and family law is repeatedly invoked as an illustrative context in which this lack of access is stark: By some estimates, 80 to 90 percent of family cases involve at least one unrepresented party.Footnote 1 Family court systems around the country have responded to this reality by establishing robust self-help centers and working to simplify court forms and procedures to better meet the needs of self-represented litigants in divorce and child custody matters. As just one example in a rising tide of innovation, self-represented litigants in Colorado can obtain information and assistance – but not representation or legal advice – from Self-Represented Litigant Coordinators, who are judicial employees located in the self-help center of each judicial district.Footnote 2 The website for the state court system offers court-approved forms and plain language instructions, including flowcharts and short explanatory videos on electronic filing for non-attorneys.Footnote 3 The judges who handle domestic relations matters are assisted by Family Court Facilitators, who work with the parties to move the case to resolution, and family court matters are governed by a special rule of civil procedure that requires courts to actively manage cases in a way that is tailored to the particular needs of each family.Footnote 4
As important as these initiatives are, it is hard to avoid the impression that they are crisis measures – more band-aid than cure. They address the inability of litigants to obtain counsel rather than reflecting an affirmative sense of what civil justice should look like.Footnote 5 Litigants moving through family court systems that have been adjusted to be navigable without an attorney will find it much easier to successfully file for and complete a divorce as compared to systems that continue to operate on the fiction of attorney involvement.Footnote 6 But even in the jurisdictions that have done the most retrofitting, self-represented litigants must pursue their cases without the benefit of legal strategy, analysis, or advice.Footnote 7 A couple that intends to resolve their divorce swiftly and amicably with minimum transaction costs might need to complete the entire process without ever understanding whether the house they have been living in is separate or marital property. As Russell Engler explained so incisively more than twenty years ago, “most assistance needed by unrepresented litigants is likely to involve what would fall within an intellectually honest definition of legal advice.”Footnote 8
Against this backdrop, advocates for family law reform have wisely noted that traditional full-fledged representation in the adversarial model, even where available, is not well-suited to many domestic relations litigants in any event.Footnote 9 Litigants who come to court because they are divorcing, need an allocation of parental responsibilities, or are otherwise undergoing some kind of family transition have a highly distinctive set of needs and interests that don’t appear in other contexts.Footnote 10 Family law’s particular qualities – the need to protect children and the uniquely intertwined financial relationship between the parties – have led reformers to invest in systems that offer multiple pathways to resolution, depending on the degree of conflict and complexity presented by each family’s circumstances.Footnote 11 Some divorcing couples who meet eligibility criteria regarding minor children and marital assets may be able to convert the terms of their agreement into a decree without even appearing in court.Footnote 12 Others will be able to arrive at an agreement after mediation or assistance from a court-assigned parenting coordinator. Adversarial procedures resulting in a judicial determination of rights and responsibilities are limited to those cases that truly cannot be resolved with a more streamlined, problem-solving approach. These structural reform efforts de-emphasize the role of counsel in resolving family law cases – reflecting both a pragmatic acknowledgement that the army of lawyers that would be needed to serve domestic relations litigants is not about to materialize, and a genuine sense that many families are better served by a system that does not run on the kind of individualized partisan advocacy that is taken to be the lawyer’s stock-in-trade.
As much as we should celebrate these efforts, we must also be candid about the role that legal expertise continues to play in achieving justice in family law. As long as we remain committed to the substantive principles that family law regimes seek to advance, and aspire to bring family law matters to resolutions that are aligned with these substantive principles, litigants should have some access to core legal competencies – especially the provision of advice. In this sense family law, for all its exceptionalist qualities, is not so different from other areas of law: Legal advice still matters. To make it accessible in the face of persistent resource constraints, the legal profession must be willing to expand the range of postures in which it is possible for litigants to get legal advice and the categories of professionals who are allowed to provide it.
The challenge, present in other legal areas where access concerns are acute but hitting family law with particular force, is how to leverage family law’s mix of exceptionalist and universalist attributes to create an array of avenues for obtaining meaningful and affordable legal advice. The options we might offer in family law will not translate seamlessly to all other contexts, as we will see. Indeed, what will work for some family law litigants would be inappropriate for others. But the exercise reveals a broader point: The most comprehensive access-to-justice strategies will include both Transubstantive interventions as well as subject-specific ones. The question is how to benefit from this pluralism while managing the added complexity that it brings. Section 16.1 shows how family law differs in key respects from the adversarial paradigm assumed by the American civil justice system. Section 16.2 explains that family law litigants are nonetheless navigating a system of legal rules, meant to effectuate profoundly consequential judgments about family obligations and various forms of dependency, and that in at least some subset of cases legal advice is critical to arriving at outcomes that are tolerably aligned with these substantive principles. Building from these observations, Section 16.3 considers various strategies for making legal advice more affordable and accessible to a wider range of family law litigants.
16.1 Family Law Exceptionalism
We might begin by observing that married couples who seek a divorce are required to use the judicial system to dissolve their marriage, no matter how deeply they agree that the marriage should end, and no matter how aligned they are regarding child custody, the distribution of debts and assets, and support obligations. Unlike parties to a contract dispute, or neighbors quarreling over a property line, or indeed any other type of civil matter, a divorcing couple may not negotiate and resolve their affairs without resort to the courts in any American jurisdiction.Footnote 13 Family law has undergone a profound transformation away from the fault-based, adversarial systems of yesteryear, in which spouses had to prove specific types of marital fault in order to obtain a divorce.Footnote 14 But for all that has changed, this feature of family law remains the same – though notably, in many jurisdictions divorcing spouses may now proceed as joint petitioners rather than opposing parties.Footnote 15 We will discuss in more detail the substantive legal principles that are said to justify this mandatory resort to the judicial system, but for now we sidestep such normative questions to instead make a simple but important observation: The presence of divorcing spouses in the judicial system says nothing about their adversity or alignment on the core issues of their dissolution. In other contexts, we might be able to assume that litigants are in court because they are adversarial. But that’s not necessarily true for divorcing spouses – in fact, a recent study conducted by the Family Justice Initiative found that 64 percent of domestic relations cases were filed as uncontested.Footnote 16 Divorcing spouses are in court, no matter how collegial or aligned their interests may be, simply because that is the only way they may dissolve the marriage.Footnote 17 This has important implications for designing access-to-justice solutions because it reminds us not to treat divorcing spouses as necessarily adverse to one another in a way that is analogous to other civil litigants. They might be able to benefit from legal service delivery models that would be categorically unethical and inappropriate for other litigants.
Another way in which family law is distinctive is the impact on children whose parents are undergoing dissolution. Family law rests on something of a paradox: The substantive principles that govern family law have as one of their chief objectives the protection of children’s interests, but the process by which these principles are adjudicated and applied in individual cases can undermine this core objective.Footnote 18 The statutes that govern child custody instruct courts to weigh numerous factors designed to identify the best interests of the child,Footnote 19 and child support regimes have been repeatedly reformed to ensure adequate support for children after family dissolution.Footnote 20 The principles that govern the distribution of marital property and the award of spousal support also take into account children’s interests. In allocating marital property between divorcing spouses, courts are instructed to consider whether to award “the family home or the right to live therein for a reasonable period to the spouse with whom any children reside the majority of the time.”Footnote 21 Alimony statutes, which typically require a demonstration that the spouse seeking support is economically dependent, allow for the court to arrive at this conclusion either because the spouse is unable to support herself “through appropriate employment or is the custodian of a child whose condition or circumstances make it inappropriate for the spouse to be required to seek employment outside the home.”Footnote 22 A court applying this provision could conclude that someone is eligible for spousal support – even if she is capable of obtaining adequate employment – because she cares for a child who would be best served by having her continue to stay home.
And yet amidst all of these substantive principles that express concern for the interests of children, a nearly universal consensus has emerged among scholars and advocates that divorce litigation itself is so harmful for children that avoiding it should be one of the central features of family court reform.Footnote 23 This consensus has been so well-established that only a brief refresher is necessary here: The essential point is that because litigation puts parents in the position of adversaries, it actively generates hostility rather than simply reflecting some preexisting, static level of conflict that the parents bring with them simply by virtue of the end of the relationship. As the process drags on parties become more entrenched in their positions, and the resulting delay and uncertainty create anxiety and confusion for the children involved.
In addition to this uniquely powerful concern for the interests of third parties, family law matters present a financial relationship between the litigants that is without a convincing analogue in other areas of civil justice. There are surely cases where a spouse might have access to separate funds, gifted by a wealthy parent perhaps, to pay for their own representation. But for the most part, the spouses are both drawing on a single, joint pool of assets to fund litigation costs, and this is precisely the pool of assets whose favorable distribution they would be seeking to achieve. Consider a divorce where one spouse feels that they should receive more than 50 percent of the value of the marital house, perhaps because they contributed substantially more to the property’s acquisition and improvement. This could well be a colorable legal claim: Most of the statutes that govern marital property don’t require strictly equal division, and instead allow judges to make a distribution that is equitable based on individual circumstances, guided by statutory factors such as contribution.Footnote 24 But in a divorce where each spouse is represented by their own attorney in the conventional way, the spouse seeking the larger share will have to consider whether it is worth spending money on two lawyers to achieve this preferential result. This expense can quickly overtake the value of the increased share that the spouse was pursuing.
The need to engage in this calculus is particularly acute, given that dissolution produces various social and financial concerns that might reasonably appear more important to divorcing couples than obtaining the assistance of counsel. If a divorcing couple has limited resources to expend on professional assistance, it isn’t obvious that they are better off spending those funds on a lawyer rather than a financial advisor, a tax accountant, or a child psychologist. In a recent study of divorcing spouses who chose to proceed without counsel, researchers repeatedly heard that a key part of the decision was to free up the funds that would have gone to attorney fees for family needs such as education and housing.Footnote 25 One study participant, “facing a rent and a mortgage, payments on two vehicles, and two insurance policies, concluded the money that would have been spent on an attorney would be better spent split between themselves.”Footnote 26 Others emphasized the desire to redirect funds toward the children of the marriage:
▪ “As I was having conversations with the attorneys, it became clear to me that representation was not an efficient use of resources that were very, very limited that I could actually be using toward my children.”
▪ “I’d much rather put that money toward supporting children than trying to fight to get them.”
▪ “We have kids in college, and there just wasn’t any reason to spend money on something – we just didn’t need it.”Footnote 27
Decisions about whether to obtain legal assistance for a marital dissolution are seen as family budgeting assessments:
My ex-partner and I looked at the expenses involved in each of us having a lawyer. We looked at the expenses of one of us having a lawyer and one not having a lawyer. We looked at the expenses of being represented for paperwork, by a paralegal, just to make the process clear so that we didn’t have to return. And that’s the method that we chose.Footnote 28
For all these reasons, scholars and advocates have emphasized that models designed for other contexts are inapt for family law. Family law systems must prioritize problem-solving and private agreement over litigation and adjudication, and treat the parties as the best source of insight as to “what processes and services are best suited to a healthy reorganization for that family.”Footnote 29 And yet, as much as we want to design systems that reduce antagonism and move away from the adversary nature of family dispute resolution, we must keep in mind that family law litigants are navigating a system that is fundamentally a legal one, in several important ways. Our growing appreciation for the value of self-determination in family court, and our need to grapple with the painful resource constraints that characterize the American civil justice system, more generally, ought not to obscure our recognition that even family court is a system in which legal expertise still has a meaningful role to play.
16.2 Family Law as a System of Legal Rules
The process that governs family dissolution is obviously a legal system in the sense that parties file motions, appear in court, and litigate toward a judgment. But more importantly, these judgments are meant to bear some relationship to substantive legal principles that express and operationalize critically important norms about family decision-making and the rights and duties that family members owe each other. The space for private ordering has grown substantially over the past decades,Footnote 30 but family law is a long way from being a system that seeks only to facilitate private agreements and resolve disputes according to the terms of any such agreements, although those are certainly important functions.Footnote 31
Family law seeks to protect vulnerable individuals and manage the inescapable social phenomenon of intersecting forms of dependency. Children are obviously dependent on the adults who care for them; family law also recognizes that adults may arrive at the end of a marriage with significant economic dependency caused by their caregiving role in the family. The paradigm case is a couple who decides jointly during the marriage, as many still do, that the overall welfare of the family would be maximized if one spouse were to put her own educational and professional pursuits on hold to manage the household and care for the couple’s children. Such an arrangement allows the other spouse to devote time and energy to professional advancement, resulting in an enhanced income stream that benefits the entire family during the marriage. But if the marriage dissolves, the economic dependency fostered by this arrangement is solely born by the caregiving spouse, while the other spouse walks away from the marriage with professional and financial prospects that reflect the family’s investment in his career.Footnote 32 The pattern is so familiar that it is captured with a shorthand reference to the “displaced homemaker.”Footnote 33
The substantive legal principles that govern family law reflect a judgment about how the economic risks of such an arrangement should be allocated. As Anne Alstott observes, “family law rules that establish financial relationships and liability between individuals constitute a form of social insurance.”Footnote 34 To protect against unfairness and to encourage adults to make decisions that are in the best interest of the whole family unit while the marriage is intact, the law treats marriage as an economic partnership. The couple earns and spends as a unit, and both parties have claims to the acquired assets of the marital estate. The fruit of marital labor belongs to the couple, not the individual laboring spouse.Footnote 35 Upon dissolution, each spouse is entitled to a share of that fruit because each contributed to its creation.
The enforcement of these principles is a big part of why the state still plays quite a robust role at the end of a marriage – not by adjudicating fault as it used to do, but by monitoring and supervising the terms of dissolution, a role that is effectuated through the requirement that those seeking divorce obtain a judicial decree.Footnote 36 States require divorces to happen in the courthouse, rather than in an administrative office resembling the county clerk’s office where real estate titles are recorded, to effectuate the economic partnership and child welfare norms to which family law is committed.
These norms are considered so important that divorcing spouses are given less autonomy than any other civil litigants to deviate from these principles.Footnote 37 Courts no longer categorically reject prenuptial agreements as per se unenforceable or presumptively invalid, but such agreements are subject to heightened scrutiny, including robust disclosure requirements.Footnote 38 Divorce settlement agreements likewise are subject to both procedural and substantive fairness review.Footnote 39 Family law’s economic partnership norms are more than simply default rules around which parties may contract to their own satisfaction.Footnote 40
None of this, of course, is set in stone. Lawmakers must consider whether there are groups of couples whose circumstances are so unlikely to implicate these concerns that they should be allowed to opt out entirely of meaningful dissolution review. That’s precisely the idea underlying simplified dissolution procedures, an important innovation offered in a growing number of jurisdictions.Footnote 41 Although the details vary, the unifying theme is that couples who meet certain eligibility requirements and agree on the terms of their dissolution can convert their agreement into a formal divorce decree with minimal time and process, sometimes without even appearing in court.Footnote 42 In Illinois, for example, couples without children are eligible for simplified dissolution if the marriage lasted less than eight years; neither spouse owns real estate; the entire marital estate is valued at $50,000 or less; neither spouse is dependent on the other for support; neither makes more than $30,000 per year nor does their combined annual income exceed $60,000; there are no jointly held retirement benefits; and the combined value of any benefits either spouse holds is less than $10,000.Footnote 43
There is ample room for productive debate about whether a larger range of couples should be eligible for this kind of streamlined process, or even administrative rather than judicial divorce. And the debate should take into account a realistic assessment of how many couples will have access to the kind of legal advice that would conceivably allow them to benefit from family law’s substantive principles and attendant judicial review. But as it currently stands, family law reflects an ambition, however imperfectly realized, that goes beyond simply effectuating private agreements, and few advocate for a systematic overhaul that would move substantive family law principles in that direction. Simplification is a crucial part of family law reform, but at a certain point it collides with our commitment to the substantive principles that form the foundation of family law.
To see these dynamics in action, consider a couple in their early thirties, without children, who are divorcing after six years of marriage. Each spouse has a college degree and has been working for the duration of the marriage. The wife works at a nonprofit organization that focuses on the resettlement of refugees, earning about $50,000 a year, while the husband works as an investment banker for a national firm, earning anywhere from $250,000 to $350,000 a year, depending on bonuses. Upon marriage the couple decided that they would not merge their finances, a practice that has grown more common in recent decades.Footnote 44 Each has their own account into which they deposit their respective paychecks, and they have a joint checking account from which to pay shared expenses. Each moves funds from their own account to the shared account as needed to pay for their half of the couple’s bills. Upon deciding to end the marriage, the couple might begin from the premise that they will each walk away with the funds in their own account and half of whatever might be residually remaining in the joint account. After all, the very practice of keeping separate accounts suggests some underlying notion of what belongs to whom – the couple might feel that by keeping their finances separate they have already resolved the question of how the assets will be distributed at the end of the relationship.
A lawyer, on the other hand, would readily identify and apply the fruit-of-marital-labor principle to this couple’s situation, and would see that the husband’s account was in fact marital property.Footnote 45 In some jurisdictions it would be subject to an equal distribution, while in others it would be subject to equitable distribution, based on factors such as the parties’ respective contributions to the marital estate and the economic circumstances they will face after the marriage ends. To appreciate the importance of having access to this legal advice, we do not need to take a position on what the parties will or should do with this knowledge. The parties might choose to proceed as they would have previously, arriving at an agreement that leaves the husband with more of the proceeds from his salary than a court might award in a judicial determination, subject to the kind of review discussed above.Footnote 46 But it is fair to assume that the parties will bargain differently with one another with this knowledge, and that if we believe in the substantive principles that underlie marital property distribution, that this is a good thing. Without it, left only to their intuitions about what is “theirs,” their agreement will be at odds with the core principle that the fruit of marital labor belongs to the couple – not because the parties knowingly contracted around it but because the insight wasn’t available. And this is a fact pattern that intentionally sidesteps some of the more pressing issues that arise in family law matters: custody of minor children, a displaced homemaker, domestic violence, or a jointly owned business that would require professional expertise to partition fairly.Footnote 47
What reformers must continue to grapple with is the extent to which family courts should be willing to sign off on agreements that smoothly and quickly proceed to a resolution that no court would order when applying the substantive legal principles in an adjudicative posture. On the surface, the agreement does tolerably well on some of the metrics that are commonly used to evaluate civil justice reforms – speed, reduction of transaction costs, and self-determination, at least in some superficial sense. But it does poorly when judged against the substantive principles that family law seeks to advance – marriage as an economic partnership – and without the wife’s understanding of this core legal principle, it is hard to say that there has been a knowing and voluntary waiver.Footnote 48 Even as we move steadily and laudably toward more autonomy in the dissolution of marriage, offering litigants a bypass around slow and costly judicial procedures that they would prefer to avoid, we should be candid about what it means for systems to ratify agreements in the absence of legal advice. Agreements may not only deviate significantly from substantive legal principles, which is one thing, but will rest on a lack of knowledge about substantive legal entitlements.
This is the conundrum: We want to facilitate private agreement, both out of an authentic commitment to promoting self-determination and reducing adversarialism in family matters, and as a realistic response to the overwhelming caseloads and resource constraints that characterize family court. And yet, for all that has changed in the law of marriage and divorce over the past sixty years, we continue to think that there is a social benefit to having a law of families that is more than just a set of mechanisms for effectuating private agreements. As long as we think it a worthy social endeavor to regulate families in this way, rather than just facilitating purely private decision-making about the distribution of assets upon dissolution, we’ll have difficult decisions to make about when we allow litigants to opt out of the judicial procedures that operationalize family law’s social insurance and risk-allocation objectives. Simplified dissolution pathways in their current form are largely designed to allow opt-out only for those couples whose circumstances are less likely to implicate economic partnership and child welfare concerns – shorter marriages with few assets and no children. (The couple depicted above would not even be eligible for simplified dissolution in Illinois, for example, because their incomes are too high.)
If we could imagine more affordable access to legal advice, so that more litigants were choosing dissolution pathways with some basic knowledge about how the law applies to their circumstances, we might feel more comfortable allowing a much wider range of couples to forego judicial review. Enhancing access to advice can thus soften – although surely not eliminate – the tension between speed, simplification, and self-determination, on the one hand, and family law’s substantive commitments on the other. Legal expertise was once necessary to navigate the compulsory adversarial nature of adjudicative divorce proceedings; now it might be the key to allowing more and more couples to opt out while maintaining some residual commitment to family law’s substantive principles.
We now can see clearly that, for all its exceptional qualities, family law shares something in common with other areas plagued by pervasive unmet legal needs. For at least some subset of participants, meaningful access to justice requires some access to legal advice: the identification of governing legal principles and the application of those principles to an individual’s particular circumstances. This is not to diminish the work that has been done to provide various other forms of valuable assistance to self-represented litigants; some of the notable efforts in this vein, in addition to the simplification initiatives mentioned above, include converting court documents and forms into plain language, document preparation software and other technological assistance, and “concierge” or “navigator” models of assistance in which court staff provide “personalized assistance, but not legal advice, for self-represented parties.”Footnote 49 But it is clear that none of this is intended to function as legal advice. Indeed, discussions of the optimal role for court staff to play in domestic relations matters routinely emphasize the need to steer clear of providing legal advice.Footnote 50
An honest appraisal of access to justice for family law litigants would acknowledge the importance of legal advice, at least for some subset of unrepresented litigants, and would note what a large range of couples there are whose assets are substantial enough to benefit from legal assistance, but whose resources are sufficiently limited that the couple will reasonably hesitate before diverting those funds to lawyer’s fees – the family law version of the “missing middle.” No matter how well-trained, hard-working, and sensitive to the specialized needs of domestic relations litigants, a bevy of court staff sidling up to the line between legal information and legal advice, or automated, AI-based advice keyed to modal rather than edge situations, falls short of what our aspirations should be. Reforms that work around the margins of the provision of legal advice are important, and we should continue to explore ways to shrink the set of litigants for whom access to advice will make a meaningful difference in the substantive justice of their resolutions – but a comprehensive strategy will attend to the fundamental importance of advice.
16.3 Access to Advice as a Linchpin of Family Justice
We’ve seen that in order to develop an appropriate access-to-justice strategy for family law, we must both carefully attend to family law’s exceptionalist attributes, and yet also recognize that, for all the transformation family law has already undergone, it continues to be a legal system governed by substantive principles, such that just resolutions will in some instances require legal advice of the sort that is still very hard to come by for most Americans. We have the foundation to understand that among the many innovative solutions being proposed and implemented, family court reform must also offer expanded access to legal advice – meaning, of course, opportunities to obtain advice, and potentially related legal services such as negotiation and document drafting, at a lower price point than what traditional representation at market rates would entail. We can now squarely consider various ways this might be achieved. Some of these possibilities, like the acceptance of joint representation as a legitimate form of unbundled legal services, will draw on family law’s distinctive attributes to propose a model that would not transfer well to other areas of unmet legal needs. Others, like early neutral evaluation, involve family law borrowing a mechanism from other areas of law and refashioning it to meet access-to-justice objectives for family law litigants. The goal is to convert family law’s particular mix of distinctive and generalizable attributes into a wider range of opportunities for obtaining meaningful and affordable legal advice.
16.3.1 Unbundling Legal Advice from Partisan Advocacy
The revision of the rules of professional conduct to explicitly allow limited scope representation, whereby “the client is in charge of selecting one or several discrete lawyering tasks contained within the full-service package,” was a significant milestone in expanding access to advice.Footnote 51 A robust literature now examines the connection between “unbundling” and access to justice, for the straightforward reason that it allows clients with limited financial resources to obtain some legal services even if they cannot afford full representation.Footnote 52 Online divorce platforms like Hello Divorce reflect the newest approach to unbundling, offering clients a range of tech-enabled plans and services that can include consultation with an attorney.Footnote 53 But for all the innovation that’s out there, unbundling has yet to achieve its full potential in enhancing access to advice for family law. One of the reasons for that is the legal profession’s continued insistence that advice and related services can only be provided in a posture of individualized partisan advocacy, thus foreclosing the joint representation of amicably divorcing spouses by a single lawyer. This possibility seems shocking if we continue to assume that divorcing spouses are analogous to other civil litigants. But it follows naturally from one of the distinctive qualities of family law considered above: Divorcing spouses are not necessarily adverse to each other in the ways that would foreclose a joint representation.
Lest one be tempted to scoff at the idea that anyone going through a divorce would agree to such a thing, it turns out that many divorcing couples seek precisely that, and reasonably so – they don’t want to hire two different attorneys to assist each spouse on an individualized basis, but they believe that they would benefit from some legal expertise in the course of their dissolution. They seek a particular type of limited scope representation, “in which a single lawyer provides them with guidance as to the set of interests they share; assists them in arriving at a negotiated resolution of all divorce-related issues; and provides them with the drafting expertise necessary to make their agreement clear, concrete, and comprehensive.”Footnote 54 Such couples are repeatedly told with the utmost conviction that this would be a categorical violation of the ethical rules, specifically the prohibition on conflicts of interest.Footnote 55 As I have previously explained, this conclusion rests on a paternalistic and insufficiently nuanced assessment of adversity in divorce, a misunderstanding of how much can be “usefully explained to a divorcing couple from an impartial stance about the law that governs the dissolution of marriage,” and a failure to appreciate the extent to which a couple can benefit from a lawyer’s expert advocacy for their potentially substantial shared interests in “minimizing transaction costs, maximizing the total value of the marital estate at the time of the dissolution, and reducing the negative impact of the divorce on any children.”Footnote 56
To be sure, joint representation isn’t for everyone – on the contrary, it is an arrangement that would work only for a very particular subset of divorcing couples. But it illustrates a broader point that access-to-justice strategies need not be uniform across or even within subject areas, and that attending to the unique needs and interests of sub-groups within sub-groups can reveal opportunities to provide access to advice in new and cheaper formulations. Joint representation should be available as part of a broader menu of options to obtain legal advice without engaging in full-fledged adversarial representation.
The problem, of course, is that any system with multiple pathways relies on the efficacy of the sorting mechanism used to match cases with appropriate services. Joint representation rests on the premise that individual lawyers, working with prospective clients to discern their interests and objectives, can deploy their trademark professional skills – an understanding of both substantive family law principles and conflicts of interest – to determine when the arrangement would be suitable. Other pathways will turn on decision-making by court staff, guided by some combination of statutory criteria, internal court protocols, and intuition. None of these are going to be perfect, and all of them will face difficult questions about path dependencies and self-fulfilling prophecies. Cases might initially appear to be nonadversarial, but only because some key issue hasn’t yet surfaced; the procedural features of the pathway into which the case is routed could then suppress an opportunity to identify and fully resolve the issue in accordance with family law’s substantive commitments. These are thorny questions requiring more extensive treatment than can be provided here. One partial and preliminary answer is to note that the only way to avoid these challenges is to return to a one-size-fits-all approach. Given the demonstrated shortcomings of that model, it is reasonable to press forward in the pursuit of an expanding menu of options, knowing full well how much pressure it places on the development of effective triage mechanisms.
16.3.2 Offering Advice in a Nonrepresentative Posture
Just as advice can be unbundled from partisan advocacy, it can be provided in a capacity that is entirely nonrepresentative. Early neutral evaluation, or early neutral assessment as it is sometimes called, does exactly this, offering a model that family law can borrow from other contexts. Descriptions of early neutral evaluation tend to focus on its function as an alternative resolution mechanism – typically for counseled parties – rather than a source of advice for self-represented litigants. The American Bar Association, for example, explains that soon after a case has been filed in court, it may be “referred to an expert, usually an attorney, who is asked to provide a balanced and unbiased evaluation of the dispute.”Footnote 57 After meeting with parties or reviewing their written comments, the “expert identifies each side’s strengths and weaknesses and provides an evaluation of the likely outcome of a trial.” This evaluation can assist the parties in assessing their case and may propel them toward a settlement.Footnote 58 As this description suggests, early neutral evaluation can be successful as an alternative dispute resolution mechanism precisely because of the expert opinion that evaluators offer to the parties, after applying the governing legal principles to the specific facts of the case.
The insight that parties might obtain from this process, potentially propelling them to settlement, may be particularly valuable for self-represented litigants in family court who have no other access to an expert who can consider their individualized facts and predict how a court is likely to rule. While mediation has been a mainstay of modern divorce for decades now, and has played a substantial role in resolving family disputes with reduced reliance on litigation, early neutral evaluation improves upon some of mediation’s recognized shortcomings, including the one we are focused on here: Mediators typically offer divorcing couples just passive facilitation, brokering an agreement without providing the kind of substantive advice that would help the couple contextualize the important choices and trade-offs they may be making.Footnote 59
Family court reformers in Colorado and Minnesota have understood the value of providing more substantive guidance to family court litigants, and both states offer voluntary, court-sponsored early neutral evaluation programs that are currently limited to the evaluation of parenting-time disputes.Footnote 60 Typical teams are comprised of one lawyer and one mental health professional, with substantive experience in the field of child custody matters. The team draws upon this background to guide the couple in their custody negotiation: After hearing from the parties, the lawyer provides the couple with information about the governing legal framework, while the mental health professional offers insight on child development, attachment theory, and other concepts important for separating parents to understand. The ensuing negotiation is primed to be more successful because the parents have been assisted in developing realistic expectations and have had some expert guidance in developing terms appropriately tailored to the needs of the children in question. This expert guidance is offered early in the process, before parties have dug in on their respective positions, and judges are on hand to convert an ensuing agreement into a decree. This combination has proven to be very effective, allowing parties to resolve their entire parenting-time dispute in a period of three to four hours. As one judge describes the process: “parties can walk into the courthouse for their [early neutral evaluation] session, negotiate a fully comprehensive parenting-time agreement – complete with holidays, transportation issues, and the like – and walk out of the courthouse with a permanent order.”Footnote 61
Unsurprisingly, cost is a significant problem in scaling up the program to include more families in its purview. The court-sponsored early neutral evaluation program costs $400 per party,Footnote 62 an expenditure that many families either simply can’t afford or are unwilling to choose at a juncture that is already financially precarious. At the same time, the cost is minimal compared to traditional representation by an attorney, suggesting that the expansion of such programs should be part of a comprehensive strategy that, as argued here, takes seriously the importance of lawyer assistance in providing meaningful access to justice.
16.3.3 Allowing Nonlawyers to Offer Advice
We must think critically and creatively about the various postures in which lawyers can offer legal advice. But as scholars such as Deborah Rhode recognized many decades ago, a comprehensive strategy for enhancing access to advice must also include an expansion of the categories of people who are allowed to provide it.Footnote 63 In large part due to her insights and advocacy, the lawyer’s monopoly on the provision of legal advice is finally starting to soften. A small but growing list of states have launched programs that allow trained and licensed professionals who are not lawyers to provide legal services – including the provision of advice – to clients in specified types of cases, including, most prominently, family law.Footnote 64 Some of these states offer such programs only in family law,Footnote 65 while others include areas such as debt collection and landlord/tenant matters; in the latter group, professionals seeking a license choose the area in which they will specialize.Footnote 66 The details of each program vary, but the education, training, and testing requirements to obtain the license are extensive, and the new legal service providers are subject to a disciplinary system that investigates and resolves grievances.Footnote 67 A full evaluation of the design considerations in developing and sustaining an alternative legal provider (ALP) program is beyond the scope of what can be covered here, but it is worth noting that data from the existing programs “show that ALPs are making a positive impact in people’s lives. Well-trained ALPs are competent, their clients are satisfied with their work product, and they can reach a portion of the population that attorneys are not reaching. Alternative legal providers are providing high-quality legal services at around half the cost of attorneys.”Footnote 68
Alternative legal provider programs are an important element of improving access to justice across multiple areas of unmet legal needs, not just family law. But it isn’t surprising that several states have made the program available only in family law, or that, even in the jurisdictions with a broader menu of service areas, there’s been the most uptake in the family law area.Footnote 69 As noted at the outset, family law is often invoked as the paradigm case for the country’s shameful justice gap – an area where the vast majority of Americans must navigate legal matters of profound personal significance without legal assistance. And as developed throughout this chapter, family law is an area where we might particularly desire alternatives to full-fledged individualized partisan advocacy in the adversarial frame – where what is unaffordable might also be undesirable. The progress that has been made in enhancing self-help support and simplifying divorce procedures is laudable, and considerably more should be done on this front. Given the persistently high cost of legal services, many more couples should be eligible to choose summary dissolution instead of slow and costly judicial proceedings from which they may have little to gain. But ALP programs reflect a growing recognition that in family law and elsewhere, there is a wide gulf between self-help and full-fledged partisan advocacy – perhaps an entire ecosystem, with different levels of service and types of service providers.Footnote 70
16.4 Conclusion
As we encourage and foster this proliferation of strategies designed to close the justice gap, we also need to study it: We lack reliable evidence about the effectiveness of these innovations, and experimentation must be accompanied by careful research.Footnote 71 Here too, the unique characteristics of family law will require special consideration. As Jim Greiner and Cassandra Wolos Pattanayak observe in their call for additional randomized studies in the provision of legal assistance, “perhaps the highest degree of difficulty in defining desirable outcomes is represented by the area of divorce and child custody.”Footnote 72 They proceed to note that legal representation may advance important nonpecuniary (and yet measurable) values such as the smooth and efficient operation of the adjudicatory system, “may educate the client as to her best interests or as to what is possible given legal and factual constraints, thereby adjusting the client’s goals,” and may promote the client’s perception of fairness and sense that she was afforded an opportunity to be heard.Footnote 73
We will want to apply the best possible empirical testing to determine whether these essential goals can also be served by the variants on traditional representation considered here: joint representation, early neutral evaluation, representation by an allied legal professional, or an amalgamation of more than one type of innovation. (We could imagine a divorcing couple who, hungry for legal advice but needing to conserve household resources as much as possible, chooses to be jointly represented by an allied legal professional instead of a lawyer.) The first step, as urged herein, is to recognize the continued value of legal advice for family law litigants, and to endeavor to make that advice more affordable and accessible using all the levers at our disposal. We might even be able to anticipate that the entire realm of civil justice could benefit from this very practice: combing through individual areas of law, identifying the precise combination of attributes that might allow us to pry open some space for additional innovation without unmanageable complexity or undue sacrifice of the field’s core commitments.
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