Laws in the Making
Streamlining the Pro Se Divorce Process
AB 447 creates a joint simplified divorce procedure
for use by pro se litigants in uncontested family actions.
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Anthony J. Staskunas (D-West Allis), U.W. 1986,
represents Wisconsin's 15th Assembly District. |
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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