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Divorce

Divorce: The Constitutional Right Many Cannot Afford

It is possible to divorce without a lawyer, in theory, but not so in reality.

Key points

  • The right to marry, and the right to end a marriage through divorce, are both fundamental constitutional rights.
  • According to a new Harvard Law School study, access to a lawyer significantly impacts the ability of low-income individuals to obtain a divorce.
  • Not only is the divorce system technically difficult without counsel, the process is emotionally difficult without support.

We all know that fairytale weddings are expensive. According to Wedding Wire's 2020 Newlywed Report, couples budget, on average, around $23,000 for their wedding but end up spending around $30,000. Of course, weddings do not have to cost so much—to get married, couples do not need $1,500 wedding dresses, $2,400 photographers, and $500 wedding cakes (all of those being average figures, by the way). The cost is elastic, and a marriage license can be obtained for under $100.

Not so for divorces.

There has been so much focus on the multi-billion dollar wedding industry in the United States that it is easy to lose sight of a potentially equally costly operation: divorce.

According to a 2019 survey by Martindale-Nolo Research, the average cost for a divorce in the United States is $12,900. Much of this cost is attributable to attorneys’ fees. Which raises the question: Is it possible to obtain a divorce without an attorney? In other words, for people who cannot afford attorneys, is divorce still an option?

Technically, the answer is yes. But without an attorney, the divorce system is so complicated that costly mistakes may ultimately cost more than attorney’s fees. This is because:

  • Few people understand how the divorce system works. This is not about intelligence or educational level; it is that the divorce system is rules-based, non-intuitive, paperwork-driven, involves complicated instructions and terminology, and varies from case to case. (A simple “Turbotax”-like solution does not work very well.)
  • Spouses who are not represented in the divorce may end up forfeiting more of their assets that they could have kept had they hired an attorney. This is true even for amicable divorces.
  • Marriages that involve minor children, real estate, or retirement accounts require skill, experience, and expertise to handle.
  • Any divorce involving spousal support, maintenance, alimony, or ongoing payments is subject to so many legal nuances that the process will be complicated. This is the same if either of the spouses has substantial debts.

Legally, just as there is a constitutional right to marry, there is also a constitutional right to end a marriage. However, because divorces are so costly, this constitutional right is—arguably—inaccessible for some Americans as a practical reality. Statistically, according to a recent study published by Harvard Law School Professor Jim Greiner, many low-income people wishing to separate remain trapped in unhappy marriages simply because they could not afford to divorce.

The study found that those who wanted a divorce and who received assistance from a pro bono attorney were significantly more likely to have obtained one three years later than those who had not. While it is well known that many low-income families cannot afford adequate legal representation in a variety of matters (from civil to criminal), the study exposes the degree to which this problem affects one of the most fundamental rights in the United States: to exit a marriage.

Greiner’s study, which followed 311 low-income individuals seeking a divorce, found that access to a divorce attorney significantly impacted the outcome of the marriage. At the end of the study, for individuals without divorce attorneys, only 9% succeeded in obtaining a divorce. In contrast, for the individuals for whom a divorce attorney was provided, 46% succeeded in obtaining a divorce.

According to Greiner: “In order to get a divorce, you had to have a lawyer. It’s unfortunate because a lot of peoples’ cases are simple: ‘I am currently married. I want to be unmarried.’ It’s hard to think of a simpler legal proceeding, and yet it was really hard for people to do this without a lawyer. It shouldn’t be.”

What is the solution? Greiner suggests the possibilities of increasing access to pro bono divorce attorneys, simplifying the divorce process, and providing more access to less expensive educational resources. These are all critical and important developments that could help address the problem. One other consideration, beyond the scope of the study is why. What is it about a divorce attorney, specifically, that helps individuals obtain divorces? Is it purely the navigation of the court system? Or is there a psychological component to it?

Attorneys are, at heart, advocates for their clients. They represent their interests, and help them achieve their goals. This may provide great comfort and encouragement in times of trouble, when people need attorneys the most. While attorneys are expensive, most billing on an hourly basis, the “you are not alone in this” security that a divorce attorney may provide could possibly come from other sources. In other words, while Greiner’s study clearly reveals a startling access-to-justice crisis in the U.S., it may also reveal the power of feeling like someone is there for you, in your corner, who can encourage you as you navigate the system. It may be worth it, then, to consider a cheaper alternative to providing pro bono divorce attorneys: a support advocate, non-attorney (who would not be billing like an attorney) to act as a friend in the process.

Whatever the solution is, the problem is clear: When a large number of Americans cannot afford to access a fundamental right, that is a societal crisis that needs to be addressed. However, the other point that is raised is the possibility that some constitutional rights are very difficult to obtain without support and encouragement from those around us.

References

DJ Greiner, EL Degnan, T Ferriss, R Sommers (forthcoming 2021). Using Random Assignment to Measure Court Accessibility for Low-Income Divorce Seekers. Proceedings of the National Academy of Sciences, 118 (14).

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