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Brian Burke: About Your Divorce (Column 154) — Unexpected Consequence of Filing for Divorce

Oblique Strategy #48 — A judge joins your family

The initiating documents in a California divorce are the Petition and the Summons. The ever-helpful Judicial Council makes them available online with video instructions. It takes about five minutes to complete the Petition.

Here’s the link to the official site; look for yourself.

The Summons begins:

YOU HAVE BEEN SUED.

Lower on the page it says:

NOTICE – RESTRAINING ORDERS ON PAGE 2

On page two you find you have been judicially ordered to refrain from doing any of the things described in five long paragraphs that most people wouldn’t think of doing.

What is not said in these initiating documents or in the instructions provided for their use is this warning:

FILE A PETITION AND YOUR FAMILY JOINS A JUDGE ON A CONVEYOR BELT

Last September, I received a note from a local therapist who had seen a change in her practice. It read, in part:

“I've had a recent increase in the number of patients seeking treatment after and during family court involvement.

"The entire process is thoroughly traumatizing for my patients. Not only am I seeing the expected psychological reactions from the dissolution of a family/marriage, but I'm also seeing what looks like PTSD.

"Even when divorce is not a factor, these patients report feeling victimized, namely by the process of divorce, mediation and custody itself. Many report feeling victimized by their own lawyers,” she said.

She asked if there is something happening at the court that could account for these observations.

There is.

Let’s first look at divorce in its natural state. When we studied the divorcing population for South County Santa Barbara we found:

The average interval between physical separation and entry of judgment was 29.9 months (28.5 months in the replication study).

Only 3.1 percent of the cases filed required a trial. Only 12 percent of the cases filed involved a courtroom appearance of any kind.

Duration of marriage was not a good predictor of duration of divorce.

Cases with minor children took significantly longer to complete than those without children.

Both the average and the median interval between separation and entry of judgment fell between 18 and 36 months in cases with or without children and regardless of the duration of the marriage.

18 percent of cases filed went nowhere. After six years the court file contained nothing but the petition.

The report on the six-year longitudinal study and the appendices showing the findings of the confirmation study are available at sbdivorcearchives.com together with an annotated bibliography and all the raw data and field notes.

[Spend 15 minutes looking over the report and Appendix II, and you will know more about divorce in South Santa Barbara County than anyone knows about divorce in any other jurisdiction in the country.

That’s a radical claim, but it’s true because, so far as I know, no equivalent study has been done.]

There were two critical features present during the periods studied

1. The court’s family law calendar was current. In other words, anyone who wanted judicial assistance with a divorce could get it without delay.

This means the measurement of the interval between separation and entry of judgment was not confounded by judicial delay.

2. The court did not involve itself in a case unless invited to do so. It trusted the parties to set their own pace and to find their own resolution. And all but the 3 percent who required a trial did exactly that.

Courts, in general, seek to provide prompt resolution of disputes

How this is done is within the province of the judges and administrators who run the system. It is no easy task in that there are a finite number of judicial officers and every criminal case has priority over any civil case filed.

For years, Santa Barbara suffered from serious judicial delay. It wasn’t uncommon for a case to be continued over a period of months from one trial calendar to the next a half dozen times or more.

It doesn’t work that way anymore. Cases are now managed on a vertical calendar. Every case is assigned to a trial judge at the time it is filed, and that judge is responsible for handling it until it is resolved.

The Legislature and Judicial Council prescribe limits for how long it should take to complete various kinds of cases.

Wisely, Family Law cases were excluded from these prescriptions. One good reason for the exception is that divorces do not necessarily involve legal conflict.

I also suspect the restraint was based on the intuition of people who were familiar with how divorce plays out in real practice rather than on the basis of hard data. But for this jurisdiction, the data are available and reveal:

All but 3.1 percent of the couples in this divorcing population will take care of themselves — if you leave them alone.

When I make this statement, I assume the 18 percent of the divorcing population that file a petition and do nothing else for the next six years is satisfied with what they have and haven’t accomplished.

I know little about this set of cases because the parties are unlikely to seek my advice. I suspect that the imposition of the time limits described below are in some part due to this set of divorces.

I have my doubts, but maybe the 18 percent need limits. If so, policy shouldn’t affect the rest of the divorcing population that will feel the effects complained of in the letter I received from the therapist.

It takes five levels of abstraction to express the time limits now prescribed in California. California Rule of Court 5.83 (c) (5) (A) through (C). They are:

20 percent disposed of within 6 months of the date the petition is filed.

75 percent disposed of within 12 months of the date the petition is filed.

90 percent disposed of within 18 months of the date the petition is filed.

The window during which cases are “ripe for settlement,” at least in this jurisdiction, is 18 to 36 months. This means the Judicial Council policy forces the trial courts to do what’s necessary to compel resolution before that window opens in 9 out of 10 cases.

Our court orders parties to appear before their judge at 1100 Anacapa St. six months after the petition was filed for a Case Management Conference. At that conference there is a good chance the judge will set your case for trial in six months.

The idea is that a looming trial date is an effective way to settle a case

Before the imposition of these limits, only 12 percent of divorcing couples made a physical appearance (in person or by a lawyer) in a courtroom. That percentage should now increase to 100 percent.

Predictably, a typical couple will not be psychologically ready for settlement at this time. But they get a trial date set, which means lawyers. Divorce, essentially a psychological process, turns into litigation.

We present judges with legal problems they can solve, but when those problems are manifestations of emotional issues, whatever the court does exacerbates them.

The solution: Don’t file a petition until your case has been settled

Ideally, the couple works out all the details of the settlement by themselves or with the help of a mediator or lawyers. Their settlement takes the form of a Marital Settlement Agreement.

To transform that agreement into a Judgment of the Court, a couple with a child will need to complete 21 Judicial Council forms.

His forms and her forms can be presented to the Clerk of the Court at exactly the same moment. They include the petition that starts the process and also the proposed judgment, which ends it.

The couple asks the court to perform only its ministerial function without further intrusion into delicate transformations that are best left alone by lawyers and judges.

Where the petition has already been filed, it can be dismissed to avoid court supervision of the case. Where both a petition and a response have been filed, the parties have to agree to a dismissal.

Filing fees ($435 each) will be lost, but if the cost of having lawyers appear at Case Management Conferences is avoided and the invitation to have a judge join your family is withdrawn, it could be money well lost.

Next column: Oblique Strategy #49 — Why Ben Affleck and Jennifer Garner might be role models for the good divorce.

— Brian H. Burke is a certified family law specialist practicing family law and mediation in Santa Barbara. A researcher and educator in the field of divorce and family conflicts, he is also the creator of the Legal Road Map™. Click here for more information, call 805.965.2888 or e-mail [email protected]. Click here to read previous columns. The opinions expressed are his own.

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