Divorce

The Problem: For the past 30 years, an increasing number of people come to court without a lawyer. As more people come to courts to access their legal rights, they are met with fewer free or low-cost legal services to help. Across the country, legal practitioners, scholars, and appellate courts have begun to question whether court procedure is effectively preventing access to justice. How does representation change outcomes for people seeking divorce?

August 18, 2016

Divorce

Current Solutions

Courts, legal services providers, and state and local Bars have responded to the flood of people without lawyers in numerous ways, including:

  • amending ethical rules to legitimate already-existing forms of lawyer representation
  • self-help centers
  • uniform court forms
  • self-help materials
  • technology
  • and non-lawyer representation.

In 2015, the Conferences of Chief Judges and State Court Administrators passed a joint resolution adopting “the aspirational goal of 100 percent access to effective assistance for essential civil legal needs.”

Some of the efforts to stem the tide of pro se, self-represented, or unrepresented litigants have focused on connecting people with lawyers: by increasing pro bono efforts and leveraging different technologies to connect people with free legal aid or low-cost representation. Recent efforts, however, primarily focus on alternatives to representation, and very few efforts address changes to court processes themselves.

The Study

Field operation

Working with dedicated partners at with the Philadelphia VIP, an organization that matches low-income people with volunteer pro bono lawyers, potential clients seeking a divorce underwent a 45-60-minute interview to determine eligibility and learn more about the details of their case.

After the interview, consenting study-eligible individuals were randomized to one of two groups:

  • Treated group: an effort by the service provider to find a pro bono attorney to represent her;
  • Control group: a referral to existing self-help resources and an offer to answer questions by telephone.

The Philadelphia Family Court volunteered dozens of hours of its staff time to provide us with redacted versions of critical documents.

Results

Completed in 2018, the Lab’s randomized study showed that people who received legal representation were 87% more likely to achieve a divorce than people without them. If you can’t afford an attorney and if you’re one of the 85% of people for whom free legal help isn’t available in Philadelphia County, you could find yourself trapped in your marriage.

In Philadelphia County, where state venue laws “required” study participants and their opposing spouses to file, and where filing should have been most convenient for our study participants (who were all Philadelphia County residents), we observe the following:

  • Eighteen months after randomization, 54.1% of the treated group, as opposed to 13.9% of the control group, had a divorce case on record.
  • Three years after randomization, 45.9% of treated group, as opposed to 8.9% of the control group, had achieved a termination of a marriage.
  • The p-values for these differences (representing the probabilities that one would observe the numbers we observed, or numbers more extreme, if there were in fact no true difference between treated and control groups) were so low as to make them almost impossible to estimate; effectively, we observed instances of p = 0.

If one expands one’s focus to other Pennsylvania counties, and thus considers filings by Philadelphia County residents who risked a dismissal due to improper venue and who abandoned the system they support as taxpayers, results remain statistically and substantively significant: 60.8% of the treated group, versus 36.3% of the control group, had a divorce case on file after 18 months, p < .00002; 50.0% of the treated group, versus 25.3% of the control group, succeeded in terminating the marriage in 36 months, p < .00002. When we account for the block randomization scheme we deployed, estimated effect sizes are a few percentage points larger than the numbers above would suggest.

The study’s modeling to determine the effect of having a lawyer for divorce-seekers as a way of measuring the pro se accessibility of the divorce system found large effects, suggesting that the system is not accessible to pro se litigants.

The full results are available in the corresponding paper, Trapped in Marriage.

The Research Team

Jim Greiner, Faculty Director, Access to Justice Lab; Professor of Law, Harvard Law School

Ellen Degnan, Law Student, University of Miami School of Law

Tom Ferriss, Quantitative Analyst, Google

Roseanna Sommers, Bigelow Teaching Fellow and Lecturer in Law at the University of Chicago Law School

More Information

About divorce proceedings and legal rights