Cost of divorce prohibitive for many, research finds

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Gavel and wedding rings for divorce concept (Photo: iStock)

By Harvard Gazette & Harvard Law Today

The process for getting an uncontested divorce in Philadelphia is so complex that it practically requires an lawyer. If you can afford an lawyer, this process is an inconvenience. If you can’t, it can keep you trapped in marriage.

A six-year-long study by Harvard Law School’s Access to Justice Lab (A2J Lab) evaluated and analyzed the effectiveness of pro bono representation in divorce cases in Philadelphia County. The recently released study found that people who received legal representation were 87% more likely to achieve a divorce than people without it.

Harvard Law School Professor D. James Greiner, faculty director of the A2J Lab, said legal practitioners have begun to question whether court procedure is effectively preventing access to justice. The A2J Lab, which aims to provide decision makers with scientific evidence about what works in access to justice, embarked on the study to determine how representation changes outcomes for people seeking divorce.

Over the past several years, the A2J Lab worked with two dedicated research collaborators—Philadelphia VIP, a pro bono services organization, and the Philadelphia Family Court—to compare results for people seeking uncontested divorces. Because there weren’t enough pro bono attorneys to offer everyone representation, the study was able to compare two groups: those offered representation and those not offered representation.

Researchers found that the two groups had radically different outcomes. Those for whom Philadelphia VIP tried to find a free lawyer were nearly four times as likely — 54.1 percent versus 13.9 percent — to have a divorce case on record with the Philadelphia Family Court, and five times as likely — 45.9 percent versus 8.9 percent — to have received a divorce. The numbers of eligible clients who received offers of representation was similarly lopsided. Only 15% of eligible folks received an offer of representation during the study.

According to Greiner, most of the people in the study were too poor to have any assets and income that would require complicated arrangements, and they still struggled to complete their divorces without legal aid.

“These weren’t complicated cases—just a divorce, without a property division or a custody or support order. The comparison groups weren’t different. The study was a randomized control trial, the same kind of study the law requires to figure out whether new cancer drugs are effective, so the groups were (statistically) the same except for the Philadelphia VIP offer,” said Greiner. “Representation proved to be crucial in navigating the system.”

Researchers also examined the steps required to get a divorce in Philadelphia. Among the findings, they identified just how difficult it is to navigate the process, which included multiple forms and waiting periods. According to Greiner, the complexity arose from multiple sources, from the Pennsylvania Rules of Civil Procedure to existing self-help materials.

In a Dec. 12 op-ed in the Philadelphia Inquirer, Greiner wrote: “Some requirements were just extreme for nonlawyers to have to complete: filling out forms with obscure jargon, such as ‘Praecipe to Transmit the Record to the Prothonotary’ or ‘In Forma Pauperis Petition,’ figuring out which paperwork to file across multiple waiting periods, and using a typewriter — not a printer, not a pen, but a typewriter — to complete a form only available from the courthouse.”

Pro bono hours dedicated to these divorce cases made a big difference. But there were nowhere near enough pro bono hours to go around: again, resources were such that only 15% of eligible divorce-seekers received an offer.

“In a system where pro bono hours are a scarce and precious resource, we shouldn’t make our legal system so complex that we have to burn those hours on a really simple legal transaction,” said Greiner.

The complete paper, “Trapped in Marriage,” is available on SSRN.

(Reprinted with permission from the Harvard Gazette.)

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