Effective today, the Tennessee Supreme Court has approved new forms that can be used for certain types of agreed divorces in courtrooms across the state. This is the result of an effort by the Court to make it easier for divorcing parties to use self-help for routine legal services.

While that is certainly a noble cause, the Court realizes it is dangerous for people to enter into binding agreements that affect their legal rights without consulting a lawyer. Accordingly, the Court severely restricts the forms’ usage to only a narrow sliver of divorces.

In order to use the new forms for agreed divorces, the parties must satisfy all the following criteria:

1. One or both parties must have lived in Tennessee for the past six months.
2. The parties have no children together who are under age 18, disabled, or still in high school.
3. The wife is not pregnant.
4. Both parties want to end the marriage.
5. Neither party has an ownership interest in any real property (buildings or land).
6. Neither party has an ownership interest in any business.
7. Neither party has an ownership interest in any retirement benefits or retirement accounts.
8. Both parties agree on how to value and divide their assets and debts.
9. Both parties agree on the amount and duration of alimony, if any.

Obviously, these restrictions limit the forms’ availability to a very small number of divorce cases.

It is worth noting that divorcing parties have never been required to use lawyers in order to get divorced; however, they have always been (and still are) required to adhere to the Rules of Civil Procedure, Rules of Evidence, and applicable law. This makes it rather challenging for people without lawyers to proceed. The new forms are designed to make easier for people to handle their own divorces in the select few cases that meet the criteria listed above.

While I support the lofty goals of the new agreed divorce forms, I have the following concerns:

1. I think encouraging people to handle their own divorces will lead to a greater number of bad results for those who need fair outcomes the most, i.e., the economically disadvantaged. Economically disadvantaged people are more easily pressured into accepting unfair outcomes because (a) they don’t know the applicable law, and (b) they feel accepting the unfair agreement is their only means for getting out of an unhappy and sometimes dangerous marriage. The absence of lawyers leads to more inequitable outcomes that would otherwise be avoided if people had the benefit of counsel.
2. Although agreed divorces may look relatively simple, they aren’t. Take alimony, for example. Click on the link for alimony in the “Categories” section on the right side of your screen and read some of those posts to get an idea of just how complex the law of alimony is. The new agreed divorce forms encourage the parties to make an agreement on alimony without making any effort to educate them about the very complicated governing law. When is alimony appropriate? What type of alimony is appropriate (rehabilitative, transitional, in solido, in futuro)? What form of alimony is appropriate (property division, lump sum payment, periodic payments)? In what amount? For how long? Should it be modifiable or not? The answers to these questions have serious consequences for a party’s financial security, taxes, etc. (As an aside, the new forms instruct people to “talk to a tax expert before” signing the agreement about alimony. How likely are the people using these forms to do that?) In other words, it’s complicated. Lawyers and judges who have spent their adult lives devoted to studying and practicing matrimonial law struggle to answer these questions every day. I could easily make the same points about property division. I don’t fault the substance of these forms because, to be fair, I don’t think any form can provide an adequate legal education. Like it or not, the fact remains that a divorce is a life-changing event that has lasting economic consequences. For most people, their divorce is the most important interaction they’re ever going to have with the legal system. For the same reason it’s necessary to have a skilled surgeon perform an operation, it’s necessary to have a skilled lawyer handle a divorce. What looks simple on the surface is actually very complex underneath.

Clearly, in an ideal world everyone would have a knowledgeable divorce lawyer. Unfortunately, that isn’t always possible. What do we do about people who need a divorce lawyer but truly cannot afford one? After all, solving that problem is the whole point of the Tennessee Supreme Court’s “Access to Justice” initiative that resulted in the new agreed divorce forms. That’s a complex question for which there is no easy answer. I’ll probably figure that one out right after I figure out how all married couples can live happily ever after. In the meantime, consider me skeptical yet hopeful as I observe how the new agreed divorce forms work in practice.

Tennessee Supreme Court’s Approved Forms for Agreed Divorces (September 1, 2011).

Information provided by K.O. Herston: Knoxville, Tennessee Divorce And Family Law Attorney.