Sunday, June 17 , 2018, 10:01 pm | Fair 59º

 
 
 
 

Brian Burke: About Your Divorce (Letter 66) — The Court System Is Broken

FL -141 Adopted for Mandatory Use - Judicial Council of California (Rev. July 1, 2013)

To the readers of this column: I’m sorry.

I ended this 65-episode saga by saying that the agreement reached by Nick and Nora in Episode 64 was not torpedoed or sabotaged by their lawyers. Instead, they worked out a 30-page Marital Settlement Agreement that Nick and Nora thought was an accurate record, though more detailed, of what was recorded on the white tablecloth.

I told you that Nick and Nora were living more or less happily. I intended to go back to various stages of their story to restate the lessons learned by adding juicy examples from real cases (with identifying facts omitted or changed to ensure confidentiality and privilege).

That was before I got into the right frame of mind to write this column by listening to “just one more voicemail.” It was from Spike (Nora), and she was furious. It will take two more episodes to tell you what she said. This is Part One. Spike’s message said:

                                                                          •        •

“Dammit Bucky, if you’re there, pick up! Pick up now! I don’t know what’s wrong with you people. Is it greed, sadism, incompetence — or all three? I don’t know if you’ve heard the latest, but if not, you are going to hear it now.

“Pinky-Boy and I took care of our stuff and turned it over to our lawyers. They have been exceptionally well paid to do nothing except stir up trouble and say things to us like: ‘I didn’t do anything to cause this. I didn’t marry him, you did. He’s the problem and I’m going to take care of it — and along the way I’ll take care of him.’

“I should have canned my lawyer the first time I heard him say something like that. I should have canned the guy when he called me Spike without permission. Anyway, The Pinker and I set up a four-way phone conference with the lawyers. We told them about the tablecloth agreement, and we told them that it’s what we want. Now it’s their turn to make it work and not get us puckered off at each other. That goofy Pinky somehow got three copies of the tablecloth, so we all had one to reference.

“They got that part right, apparently. Even you said everything was done. Well, everything isn’t all right. In today’s mail I got a letter from my blockhead lawyer that goes like this:

Dear Spike:

(If he writes one more letter calling me Spike, I’m not paying his bill.)

We thought your case was all done and didn't want to trouble you with one more thing. As you will see on your bill, three people reviewed the entire set of a dozen court forms. (Each had several places where information of one kind or another had to be inserted. That’s why we have three people check over every line of these forms before submitting to the clerk’s office. I’m sure Nick’s lawyers did the same thing).

Your settlement Bundle has about fifty pages in it. Your Marital Settlement Agreement is about thirty pages long. The rest consists of forms generated by the California Judicial Council. On average, at least twenty mistakes can be made on each form. It is easy to make these mistakes because:

» While the forms look similar, there is no overall uniformity of layout. For example, you date one in the lower left corner of the last page and the other at the bottom of the first page.

» As often as not, there is no way of knowing why certain information is being requested, which makes that information hard to provide. (You ask constantly, ‘what are they looking for here?’ There are no good answers.)

» There are instances where the same information must be placed on more than one form, so you suspect that one of the entries must be wrong.

» These forms have been proliferating over the last twenty years by state bureaucrats who: (a) change jobs, (b) have never and will never have to use the form they’ve designed and (c), don’t have a clue as to how all the forms should work together.

» Compliance is policed by local court clerks who are not lawyers and who are ignorant of what each form is supposed to accomplish. At least 25 percent of the forms satisfy jurisdictional issue. There are no easy metaphors available to explain the unfamiliar principles of jurisdiction, which is why most law schools spend one full semester teaching it.

I’ve heard that the clerks have some sort of cruel game with the winner being the clerk to reject the most documents submitted within a given period of time. I don’t think it’s true, but it would help pass the time before each can retire at full pay (actually more than full pay after the first or second cost-of-listing increases).

Of the divorcing population, the Judicial Council claims that at least one party is self-represented in 70 percent of the cases filed. Each party pays a filing fee of more than $400. Since a small portion of that population involves the court in conflict, their $800+ is payment for clerical services. These forms are supposed to make the process easier and thereby provide that $800 service. In other words, the forms are supposed to make it easier to process a divorce. They don’t. They always make it unnecessarily difficult and as often as not they make it impossible for a person to do his own divorce (settled by agreement) without professional help, which, as you will see, can be dubious.

For 30 years I’ve felt guilty because this part of the court system doesn’t work. I’m an officer of the court and the “court is my thing,” so when it doesn’t work it shouldn’t cost the client money to get a problem fixed that shouldn’t be broken. I’ve also felt protective of our local judges. They have nothing to say about the generation of these monstrous forms, so when I complain, I’m quick to say, “But it is not the fault of our judges.”

Both change as of today. Take the first one. The system is broken and you need something from that system. I can get what you want, but it will take more time than it should. That will be my time. I don’t do this work because it’s fun. I’m in it for the money in the sense that I wouldn’t do it unless I was getting paid.

Imagine that you have to file a Turkish tax return and you can’t even read the forms. You would hire someone to do it for you. One of the things you would be paying for is that person’s ability to guide your return through a system that’s disorderly, confusing and essentially irrational. You don’t understand it, and you don’t want to understand. Finishing a divorce in the California Superior Court for the County of Santa Barbara (Anacapa Division) is more difficult than filing a Turkish tax return, so be ready to pay up.

As for the judges, truth to power. I’m an officer of the court, but they are the court. So listen up, guys! When it comes to your divorce form business, it stinks and it has stunk for years. You say that there’s nothing you can do because it’s imposed by a bunch of bureaucrats from Sacramento; therefore, it’s not your problem. (Historically, this is a dangerous position for judges to take.)

It’s your court. You figure out how bad it is, what can be done about it and then do it! If you can’t or don’t want to, maybe you don’t want to continue being judges.

Well, Spike, I will now come to my point.

It’s about the “DECLARATION REGARDING SERVICE OF DECLARATION OF DISCLOSURE AND INCOME AND EXPENSE DECLARATION. It’s a declaration (a statement under oath) about another declaration that’s about a third declaration. The ridiculous title of the document serves as an indictment of the governmental agency that created it.

To be continued ...

— 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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