Access to Legal Remedies: The Crisis in Family Law

Abstract:     
Lack of access to the courts to resolve domestic disputes is a national problem which deserves the attention of both family law scholars and practitioners. Family law scholars have exhaustively critiqued both the substantive and procedural law governing dissolution proceedings. This analysis of rules and standards, however, is rarely conducted with the explicit goal of maximizing access to the courts for people of low and moderate income. This paper begins by assessing the dimensions of the problem through an explanation of the existing domestic legal needs studies. This paper also presents a case study of a typical multi-issue domestic case to provide a context within which to explore procedural and other innovations aimed at both reducing formal requirements on simple domestic cases and replacing discretionary standards with structured, predictable rules. Procedural reforms identified in the paper include providing alternatives to full adversarial hearings in some domestic proceedings; relaxing barriers to non-attorney advice and representation; identifying the appropriate categories of cases for such procedural innovations; and designing appropriate mechanisms for informed pro se representation, including education programs and wider use of standardized forms.

Keywords: family law, pro se, domestic relations, access to courts

JEL Classifications: K39, K40

Accepted Paper Series