response is to remember, or even make up, some kind of abuse. So even if the divorce is complicated and disputed, if a person can meet the legal aid income guidelines (125% of the federal poverty line) and claim spousal abuse, he or she can get a free, government-paid lawyer to pursue a divorce.
If the client’s income is more than 125% of the poverty line, he or she is altogether out of luck for a free lawyer. That income ceiling is a very stringent requirement. In 2013, it was $14,363 for a one-person household. This means that a full-time worker earning the minimum wage ($15,080 annually at $7.25 per hour) is ineligible for legal aid.
Unfortunately, only a fraction of our clients fall into one of these two categories, and of course most middle-class divorces do not. First, note the irony of requiring divorcees to agree on everything before they can get divorced. Most people seek divorces because they have trouble getting along with their spouses.
Second, a wide range of potential problems can make a divorce contested or complicated. Our clinic has had multiple potential clients where the spouse is in another state or was even deported back to another country. Often, there are children, disputed assets, allegations of abuse, or all of the above. Sometimes the other spouse simply does not want to get divorced at all, or at least not on the client’s proposed terms. Homeless people have sometimes lost all track of their former spouses.
Middle-class divorces are even more likely to involve disagreements. Consider two recurring scenarios: disputes over custody and asset distribution. Many divorces include children, and choosing which parent should make educational or medical decisions or how to share physical custody can be extremely challenging. Most courts award custody based on what would be in the “best interests of the child,” considering all of the relevant circumstances. Thus, the fights can get particularly nasty, dredging up every deficiency and every bad parenting moment of either spouse. The fights are long, costly, and bitter. They are also very hard to navigate without a lawyer. To handle a full-scale custody dispute properly, a litigant must take discovery of the other side, which requires interviewing witnesses, requesting documents, and submitting lists of questions. He or she must file motions, which often request information or seek to toss the case out or narrow the issues and questioning. And he or she must understand and navigate the rules of evidence, which have complicated requirements for laying a foundation and authenticating documents and the like. A pro se litigant cannot do this well. In 2005, small-firm lawyers and solo practitioners charged, on average, $182 an hour. Even at $100 an hour, the costs add up pretty quickly.
These custody problems recur over time. Consider a divorced parent who decides to move for work or family out of town or out of state. The court will reconsider the issue under the best-interests-of-the-child standard. The bitter ex-spouses can once again air each other’s faults and alleged bad parenting. The legal fees will cost thousands more. There is also the potential for what poker players call “short-stacking.” In tournament poker, there are special strategies for when one player has a lot more chips than another (the “short stack”). Essentially, the richer player can bully the short stack into folding repeatedly by betting a lot. Drawn-out custody battles sometimes recur because one spouse can afford to keep hiring a lawyer and the other cannot. In these circumstances, the costs of the process, not the merits, largely determine who wins and who loses.
Likewise, divorcing spouses often disagree about how to define or divide marital property. Generally, marital property is property Access to Justice in Civil Courts acquired during the marriage, except for property inherited or given as a gift to one spouse. But there is always room for dispute: Special rules govern commingling of funds. Spouses earn and jointly spend money during a marriage, confusing matters. And one spouse may even accuse the other of hiding or mischaracterizing assets as non-marital. Finding assets or disputing which assets to include in the division of property is time intensive and very expensive. It starts with the cumbersome discovery process, in which each side demands documents, questions witnesses in depositions, and seeks information from the other side. The process continues with more investigation, and ends with litigation over what property to include and how to divide it. These disputes are governed by a mix of common-law standards, court precedents, and statutes. A pro se litigant would thus find it hard even to figure out what law applies, let alone how to litigate the issues properly.
Lumping It
Given the costs and complexity, the potential client may well just have to “lump it”—find some way to agree on the underlying issues, stay married until the divorce becomes uncontested, or simply stay married for good. Why? Because the process is so complicated that it requires a lawyer to navigate, and there are simply no lawyers they can afford. In some cases, that might be salutary: choosing not to sue a neighbor over a property dispute, for example, might save money and improve relations, and unhappy couples are sometimes better off working out their differences instead of divorcing. Many of these problems, however, are more like needed divorces or changes to child custody arrangements. People who cannot afford lawyers to solve these problems suffer real hardships.
There is plenty of evidence of an access-to-justice problem. Two empirical studies suggest that poor and middle-class Americans suffer these problems frequently. The most comprehensive such study is the American Bar Association’s 1994 study Legal Needs and Civil Justice, which canvassed both low- and moderate-income Americans. (“Low income” meant 125% of the poverty line and below, and “moderate income” meant the middle three-fifths—from 20th to 80th percentile—of households). About half of all households had at least one unmet legal need during 1992 (excluding desires for standalone legal advice), but nearly three-quarters of the low-income households’ problems and two-thirds of the moderate-income households’ problems were never brought to the civil justice system.
Professor Gillian Hadfield compared this study to studies of legal needs around the world. Americans were about as likely to have a legal need and about as likely to use a lawyer to solve those problems as citizens of other countries, but were far more likely to “lump it.” Citizens in England, Wales, Scotland, and Slovakia got advice from non-lawyers much more often, apparently filling the gap.2 Almost a third of Americans lumped it in the 1994 survey, compared with under 5% in the U.K. and 18% in Slovakia. Hadfield concludes:
These studies suggest that the U.S. legal system plays a significantly smaller role in providing a key component of what law provides—ordered means of resolving problems and disputes—than either comparable advanced market democracies or countries still in the early stages of establishing the basic institutions of democratic governance and a market economy.3
The World Justice Project’s (WJP) 2014 version of the Rule of Law index further demonstrates that the United States lags behind other industrialized countries in access to justice. The WJP surveyed or interviewed more than 100,000 citizens and legal experts in ninety-nine countries; it found that the United States fell in the bottom half of the high-income countries on their aggregate measure of the rule of law and was a staggering 25th out of thirty wealthy countries on the civil-justice measure.4
Other studies, focusing solely on poor Americans, have found even greater unmet need. The most recent comprehensive study is a 2009 report by the Legal Services Corporation (LSC), which presents three different measures of unmet need.5
First, the report found that, because LSC lacked enough money, it had to reject almost a million cases per year—just over half of all eligible clients. These numbers do not include people who were denied services by non-LSC-funded programs and those who did not seek legal help at all. They also do not include potential clients who were ineligible under the stringent poverty guidelines (generally set at 125% of the federal poverty line), that is, middle- and lower-middle-class people. Lastly, the number of clients “served” by LSC programs includes people who received partial or unbundled services or limited advice, such as a five-minute telephone call, a brief chat at a help desk, or a do-it-yourself manual. In Chicago, for example, these “brief services” make up 80% of the clients counted as served.6
Second, the report amalgamated data from studies of seven states—Alabama, Georgia, Nevada, New Jersey, Utah, Virginia, and Wisconsin. These studies show that low-income households have as many as three different legal needs a year, and that fewer than one in five