Retired Judge: Court-Based Divorce Is Out Of Order, Alternatives Such As Collaboration And Mediation Generate Less Expense And Stress

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Echoing the sentiments of many legal professionals in Northern Virginia, a Los Angeles Times article offers the sentiments of a retired California judge that people should avoid court, if at all possible, in their divorces:

Want a divorce? Fine, but stay out of court.

That’s the message from former Judge Roderic Duncan, who spent a decade deciding which spouse would receive custody, support and assets in the crowded family law courts of Oakland.

“Going to court isn’t efficient. It’s way too costly, it takes too much time of everyone involved, and it creates stress and discord between people,” he said. “If it’s discord between just a husband and wife, that happens. But if there are children, that discord spills over to them and that’s just not fair.”

Duncan, 74, joins a growing number of experts who have come to favor alternatives, such as mediation and collaboration, over court-based divorce.

He opted to deliver his message by writing a book called “A Judge’s Guide to Divorce: Uncommon Advice from the Bench.” The crux of the book is that traditional divorce brings out the worst in people and the result is that couples end up supporting the college aspirations of their lawyer’s lawyers’ children rather than their own kids.

Contentious divorces easily can cost $100,000 in attorney fees and take more than a year to complete, Duncan said. And the outcome is rarely as good as when couples sit down and cooperate.

His book cites several examples of divorces that have spanned decades and demanded legal fees approaching $500,000. And still 80% of the apparent “winners” left court saying that they didn’t get what they wanted, he said.

“When I looked back at it after retirement, it became so clear to me that we created a system where the impetus is to fight and contest and nobody gets the result they want,” Duncan said. “There are so many alternatives available that are better and cheaper and involve so much less stress.”

Four things have to be decided in a split, he said: child custody, child support, alimony and the division of assets.

When those issues are simple — say, when there are no children and few community assets — many couples can work out a deal without attorneys. Some courts have clerks assigned to couples navigate the court system without a lawyer.

It is wise to have any do-it-yourself agreement reviewed by an attorney, Duncan said. An attorney may be able to spot clear inequities and violations of law or regulation and bring up issues that the couple may have forgotten.

Even if these few issues result in the attorney spending several hours to get the agreement buttoned up, the couple probably will save thousands compared with the cost of having attorneys from start to finish, he said.