When couples in California face the difficult decision to end their marriage, they often find themselves navigating a legal maze filled with emotional, financial, and procedural complexities. One of the most crucial decisions they must make is whether to litigate their divorce in a public courtroom or work with a temporary all-purpose private judge to resolve their disputes. Both options have distinct advantages and challenges, and the choice largely depends on the couple’s specific circumstances and priorities. Understanding the nuances of divorce proceedings in the public court system vs. hiring a private judge can significantly influence the outcome of a case and the overall experience for both parties.
Private Judge vs. Public Court Divorce: Understanding the Basics
The decision to resolve a family law dispute through a private judge or public litigation fundamentally impacts how the divorce process unfolds. Litigation in the public court system involves taking the case to a traditional court, where a judge—appointed by the governor or elected by the voters in the county—presides over the matter. In contrast, when the parties hire a temporary all-purpose private judge for a divorce, they give the same authority to a retired judge or experienced attorney to serve as the decision-maker in a more tailored setting. Each approach has its distinct processes, benefits, and drawbacks that must be carefully considered.
Public Litigation: The Traditional Path
By choosing the public court to proceed in a divorce, all proceedings occur in open courtrooms, with the judge’s schedule dictating the pace of the case. Public litigation offers the most transparency, as all hearings and trials occur at the courthouse. However, this transparency can also lead to privacy concerns, especially for high-profile individuals or those with sensitive financial matters. Some benefits of public litigation include:
- Cost-Effectiveness: Litigating a divorce in public court can be less expensive in terms of direct fees, as there is no need to pay for the judge’s time. This can make public litigation a more accessible option for couples with limited financial resources.
- Judicial Oversight: The traditional court system is designed to ensure fairness by randomly assigning a judge, who was appointed or elected, to each divorce case.
Unfortunately, there are also challenges associated with the public litigation process, such as:
- Delays and Scheduling Issues: Overburdened court dockets often lead to long delays, prolonging an already difficult process. It is not uncommon for cases to stretch out over months or even years due to scheduling conflicts and systemic backlogs.
- Lack of Experience in the Subject Matter: Public court judges are generally appointed or elected after practicing law for many years, but they can be assigned to a department that they don’t have experience in. Additionally, most courthouse judges rotate into a new department after a few years. Although they often have years of experience in their area of expertise, a public judge doesn’t necessarily have family law experience and therefore may not understand the intricacies of the complex financial or high-conflict custody cases brought before them.
- Less Privacy: Divorce proceedings are part of the public record, meaning sensitive personal and financial details may become accessible to anyone watching or listening in the courtroom. For couples with high-profile careers or substantial assets, this lack of confidentiality can be particularly troubling.
- Stressful Atmosphere: Public litigation can be adversarial, heightening conflict and stress for both parties. The formal courtroom environment and procedural rigidity can exacerbate tensions during an already emotional time.
Many people find that these drawbacks outweigh the benefits of working through public courts. In these situations, they may opt to use a private judge in California instead.
Private Judge Divorce: A Personalized Approach
Proceeding with a divorce by retaining a temporary all-purpose private judge offers an alternative for couples seeking a more discreet and flexible resolution. Here, the parties hire a qualified temporary all-purpose private judge to oversee their case, often in a private office, conference room, or conference center setting tailored to their needs. This option is particularly attractive for individuals seeking control over the pace and some control over the accessibility of their divorce proceedings. Benefits of using a private judge include:
- Expertise and Specialization: Private judges often bring years of experience in family law, offering nuanced insights and tailored solutions for complex cases. Their expertise can be particularly advantageous in high-asset divorces or cases involving intricate child custody arrangements.
- Faster Resolutions: With fewer cases on their docket, private judges can often resolve disputes more quickly than public courts. The ability to set a custom schedule ensures that hearings and rulings are expedited, frequently saving months or even years.
- Flexibility: Parties have greater control over scheduling, allowing them to set hearing dates that accommodate their needs. This flexibility can be especially valuable for parents juggling custody schedules or professionals managing demanding careers.
- Higher degree of Privacy and Confidentiality: Retaining a private judge ensures that proceedings will occur outside the public courthouse, thereby reducing the likelihood that sensitive matters, including financial disclosures and personal disputes, will be disclosed to the public who might be watching. Such an arrangement is particularly beneficial for high-profile couples or those valuing their privacy. Keeping proceedings more private can also shield children from unnecessary exposure to parental conflicts.
Key Considerations When Choosing Between Public Litigation and a Private Judge
When deciding between public litigation and a private judge, couples should weigh several factors, including the complexity of their situation, finances, desire for a faster and more flexible process, and a higher degree of privacy. Below are some scenarios where one option may be more advantageous than the other.
Privacy Concerns
For high-net-worth individuals, celebrities, or anyone with a strong desire to keep their personal matters from being displayed in hearings and trials in the public courthouse, retaining a private judge for their divorce offers unparalleled discretion. By keeping proceedings out of the public courthouse, couples can discuss sensitive issues, such as financial and personal details, without curious third parties present.
Speed and Efficiency
Public courts often suffer from backlogs, which can delay hearings and extend the duration of the case. If time is a critical factor, such as when resolving urgent child custody or financial matters, a private judge can expedite the process. The ability to set a custom schedule ensures that disputes are resolved promptly, avoiding the lengthy delays common in public litigation.
Cost Considerations
While private judge divorce involves additional expenses, including the judge’s hourly fees, the overall cost may still be comparable to or even less than public litigation due to the shortened timeline for the parties. Private judges minimize the standard wait times associated with public court, which can impact clients, who may otherwise be working, and their attorneys and experts, who charge for travel and wait time as part of their fee for the court appearance. However, for couples with limited financial resources, the traditional court system may be the more affordable option. Couples should carefully consider the long-term financial implications of their choice.
Case Complexity
Highly complex cases involving intricate financial matters, business valuations, or contested child custody issues may benefit from the expertise of a private judge. Their focused attention and specialized knowledge can lead to more informed and equitable decisions. Conversely, simpler cases may not justify the additional expense of hiring a private judge.
Emotional Considerations
Divorce is not just a legal process; it is an emotional journey. Couples with high levels of conflict may find the adversarial nature of public litigation more stressful and damaging to their long-term relationships, especially if children are involved. A private judge’s ability to foster a less contentious atmosphere can make the process more bearable.
Practical Steps for Choosing the Right Option
- Evaluate Your Priorities: Consider what matters most to you and your spouse—whether it’s expertise in family law, speed, cost, or a more private setting. Your priorities will guide your decision-making process.
- Consult an Attorney: An experienced family law attorney can provide invaluable guidance on which option aligns best with your goals and circumstances. Attorneys with experience in both public and private settings can offer insights into the advantages and challenges of each.
- Assess the Financial Implications: Discuss the costs associated with both public litigation and private judging, factoring in not just direct expenses but also potential savings from expedited resolutions. Consider the financial and emotional cost of prolonged litigation.
- Consider the Emotional Impact: Divorce is an emotionally taxing process. Choosing a less adversarial and more controlled environment may reduce stress and lead to better outcomes for both parties and their children. The ability to shield children from contentious proceedings is often a significant factor in opting for private judging.
- Review Your Case Complexity: Cases involving business assets, assets that are difficult to value, or significant custody disputes often benefit from the specialized attention of a private judge. Simpler cases may be more efficiently handled in the public system.
The Family Law Difference
The decision to work with a private judge or litigate a divorce in public court represents more than just a procedural choice; it reflects the couple’s values, priorities, and long-term goals. In some simpler cases, public litigation offers cost-effectiveness and judicial oversight, but it often lacks the family law expertise and flexibility many couples desire. Private judge divorce, on the other hand, provides a more tailored approach with an added layer of discreetness. By carefully considering the benefits and challenges of each path, couples can choose the option that best meets their unique needs.
At Flicker, Kerin, Kruger & Bissada LLP, we understand that no two divorces are alike. We have litigators that can represent you if you choose to litigate your divorce. If you and your spouse want to work with a private judge to resolve your divorce outside of the public courthouse, our office can assist with that as well. Michèle M. Bissada is a Senior Principal who devotes her entire practice to neutral work, serving as a mediator, settlement judge, and all-purpose private judge. She has 30 years of experience and expertise, allowing her to navigate complex financial and high-conflict custody cases with sensitivity and compassion while making sound and well-reasoned decisions. From complex custody battles to high-asset property divisions, our attorneys are committed to helping you achieve the best possible outcome. Contact us today to learn more about your options and how we can help you build a brighter future for yourself and your family.