Laws in the Making
Streamlining the Pro Se Divorce Process

by Anthony J. Staskunas

HANDLING PRO SE LITIGANTS IN Wisconsin is one of our court system's greatest challenges. This is certainly true in the area of family law. For example, in 1999, in Milwaukee County, more than 10,000 pro se family court cases were filed, representing 72 percent of all family court cases in the Milwaukee County District. Also in 1999, in the 10th Judicial Administrative District, consisting of 13 counties in northwest Wisconsin, pro se litigants filed 53 percent of all family court cases.

The Wisconsin Pro Se Working Group

In response to this large and ever-in-creasing number of pro se litigants, Chief Justice Shirley S. Abrahamson appointed the Wisconsin Pro Se Working Group. That group submitted a final report in December 2000 regarding the issue of pro se litigants. The Wisconsin Pro Se Working Group consisted of judges, court commissioners, attorneys, professors, and other court personnel. One of that group's recommendations was to pursue legislation that would streamline and simplify uncontested family actions.

In response to the group's report, I have authored 2001 AB 447, which creates a joint simplified divorce procedure. This bill seeks to streamline the process of divorce for couples who meet certain criteria, including:

• an agreement by both parties that the marriage is irretrievably broken;
• the length of the marriage is not more than five years;
• no children were born to or adopted by the parties, and the wife is not pregnant;
• each party waives the right to maintenance from the other party;
• neither party owns real estate;
• the total fair market value of all property, after deducting encumbrances, is less than $20,000;
• the parties' combined annual gross income is less than $40,000;
• the parties have disclosed to each other all assets and their tax returns for each year of marriage; and
• the parties have executed a written agreement that divides all of the assets and allocates responsibility for all of the debts and liabilities.

AB 447 requires a final hearing before the court, as in any other divorce case. The hearing may be before a judge or court commissioner. Unless the court finds that the agreement reached by the parties is inequitable to one of the parties, the judge must incorporate the parties' agreement into the judgment of divorce. A judgment of divorce granted under the joint simplified divorce statute may not be appealed.

It is anticipated that the State Bar Family Law Section, working with clerks of court throughout the state, would draft standardized forms and instructions for pro se litigants to use. The instructions, providing a roadmap of the process, and the forms will simplify the process for these litigants and the court system.

How AB 447 Streamlines the Process

First, by providing standardized forms and instructions, clerks of court will spend less time correcting the drafting and filing errors by pro se litigants.

Second, with the simplified forms as a guide, pro se litigants should be able to draft a Final Marital Settlement Agreement, which meets all of the necessary statutory requirements. This will reduce the amount of time that judges and court commissioners spend with pro se litigants, correcting their mistakes and guiding them to a final divorce.

A joint simplified divorce procedure already is law in Illinois, California, Oregon, and several other states. More states have joint simplified divorce procedure legislation pending.

AB 447 is not an attempt to make divorce "easier" or to "speed up" the divorce process. All the current statutory requirements still must be met. For example, the current 120-day waiting period still will apply to couples using the simplified divorce procedure. Wisconsin has one of the lowest divorce rates among Midwestern states and AB 447 should not change that. AB 447 will not encourage couples to obtain a divorce but will allow the couples and the court system to conserve precious time, money, and resources.

AB 447 has been referred to the Assembly Family Law Committee chaired by Rep. Carol Owens (R-Oshkosh). A public hearing on the bill is anticipated before the Assembly Family Law Committee in October.

Wisconsin Lawyer