Private divorce courts create dilemma for state court system

Most people in Sacramento who are contemplating beginning a divorce proceeding assume that their case will be heard in the state court system. That assumption carries with it the related assumption that the proceeding could drag on for many months, because the court system lacks enough judges and courtrooms to handle the case load in a timely manner. For some divorcing couples, however, a shadow divorce court system is available to couples can pay for it.

A number of family court judges who have retired are offering their judicial services in a private judicial system to persons willing to pay for those services. The parties agree to pay the judge for presiding on the case and to abide by whatever orders the judge issues. In return, the parties obtain a much faster decision in their case and pay far less in legal fees.

Private judging began to gain popularity in the early 1980s, especially in Los Angeles. The parties enter into a contract that requires them to accept the judge’s rulings as binding. The parties also agree that the proceeding will be governed by the applicable California state laws and the Rules of Civil Procedure. In 2017, a retired California Court of Appeals judge and a family law attorney analyzed the costs incurred in a privately judged divorce and a publicly judged divorce. They found that a publicly judged divorce imposed a collective average cost, including attorneys’ fees and costs, of $96,600. Privately judged divorces cost $69,000.

Sacramento County is one of the counties where private judging dramatically reduces the cost and the time of a divorce. Despite the advantages of a private divorce, many people worry about inadvertently creating a two-tiered judicial system based exclusively on the ability to pay. For the moment, the two-tiered system will survive unless and until the legislature finds a way to provide more funding for public courts.