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Sunday, December 16 , 2018, 1:17 pm | Fair 64º


Brian Burke: About Your Divorce (Letter 68) — Will It Ever End?

Nick and Nora each completed the July 1 revised version of the Declaration Concerning ... Declaration ... Declaration [Judicial Council Form FL 141].

Their Marital Settlement Agreement was properly attached to a Judgment [Form FL 180]. Of the 17 Judicial Council forms they completed, eight were submitted to the Office of the Clerk of the Court for processing. Among other things, the California Rules of Court require:

» 1) Recycled, opaque, white paper not less than 20-pound weight

» 2) Black or blue-black ink and 12-point type

» 3) Courier, Times New Roman or Arial font or a [boring] equivalent

» 4) Each sheet of paper must have two “pre-punched normal-sized holes, centered 2½ inches apart and 5/8 inches from the top.”

» 5) And much, much more ...

What a clerk does is described in the law as a “ministerial duty,” which is a “function that conforms to a prescribed procedure.”

Such careful attention ensures all required forms have their boxes correctly checked and their blank spaces filled so that a signature tab can be affixed to the bottom of the second page of Form FL 180 — the Judgment of the Court that incorporates the Marital Settlement Agreement stapled to it. With the signature tab in place, a judge can sign the judgment knowing the supporting paperwork is in order.

June 27 — Filing fees for divorce $435 x 2 = $870

Nick and Nora began their case on a bumpy road, but this final closing procedure would be the same for a couple who, in one way or another, had nothing to do with the court until it was time to make their agreement official. Nick and Nora paid their filing fees at the outset. The second, hypothetical couple didn’t pay their fees until they were finally ready to seek the service of the court. As of June 27, their filing fee was $435 for each party, for a total of $870.

Aug. 20 — County Clerk’s Office will need two to three months to process simple judgment

On Aug. 20, the members of the Family Law Section of the County Bar Association received the following message from the Section Chair:

“As you know, the budget cuts have dramatically affected staffing in the Clerk’s Office. When [the head clerk] started working [for the county], there were three front clerks for family law matters, and one head clerk. Now there is one front clerk and one head clerk. [Our head clerk] reports that we should expect delays of two to three months in processing judgments and other non-emergency matters ...” (Emphasis supplied. Note: four clerks previously; two clerks now.)

For Mr. and Ms. Hypothetical, the petition starting the case was filed at the same time as the proposed judgment ending the case. It couldn’t take a clerk more than two hours to review and process their file both before and after a judge signs the judgment. (The execution of the judgment by the court takes no more than a minute.)

A “filing fee” is a “user fee” imposed on those citizens who need a governmental service. Here it’s the transformation of an agreement into a judgment. A fee of $870 is paid for less than two hours of a clerk’s attention. Deputy clerks are generally men and women hired in their early 20s without a legal background. Whatever legal training they get is provided on county time and at county expense. (Completion of Judicial Council forms is not included in law school curricula and it is not a subject in the California Bar Examination.)

The $870 user fee is high and is justified for Mr. and Ms. Hypothetical because of its “added value.” The Hypotheticals agree that their divorce was worth $870. But wait! Was it worth $870? No. It will be worth $870 in “two to three months.”

In the private sector, a business (excluding hospitals) couldn’t survive if they routinely took two to three months to complete a two-hour job for which it charged $870.

Aug. 25 — Santa Barbara County employees highest paid in state

Speaking of the private sector, five days after we heard that a simple $870 judgment will take two to three months to process, a front-page News-Press headline screamed: “[Santa Barbara] County government employees best paid in state.” The story reports that when Santa Barbara County government salaries are compared to the median salary in the county’s private sector, county employee salaries are the third-highest in the United States of America. In terms of percentage, county employees earn, on average, 187 percent more than the county’s other working residents.

When asked, county CEO Chandra Wallar explained, “Certainly, cost of living is a big factor in the higher salaries.” Digression: This explanation is spurious. The comparison reported in the News-Press (Aug. 25) matched the incomes of county and private-sector employees living in the same place and who therefore necessarily face the same cost-of-living.

Waller goes on to say that while county salaries are high, “they don’t reflect the generous benefits and more time off compared to private workers.” This reply is disingenuous (viz. deceptive). Firefighters and deputy sheriffs are entitled to 3 percent of their highest salary for every year of service. Thus, they can retire after 30 years at 90 percent of their highest salary for life. After two or three cost-of-living adjustments, their retirement income will be more than they were ever paid while working.

Other county employees get 2.7 percent of their salary per year of service. Thus, if a deputy clerk starts to work for the court at age 25 and works until age 60, they will retire five years earlier than the typical private-sector employee at 94.5 percent of their highest salary for life. Moreover, the county pays for the retired employees’ health insurance until they qualify for Medicare.

I doubt that there are more than a half-dozen private-sector employers who provide equivalent retirement benefits. A retirement plan that ensures you will receive a predictable retirement benefit for the rest of your life after a given period of employment is called a “defined benefit plan.” The cost of funding these plans is enormous; of the hundreds of divorcing people I’ve consulted with (other than public employees) during the last few years, I don’t recall a single case where the husband or the wife had a defined benefit plan. Currently, retirement plans consist of contribution to deferred compensation accounts such as 401(k) and IRAs. In other words, Santa Barbara County retirement benefits are breathtakingly generous. In 2011, there were 152 retired county employees whose benefits exceeded $100,000 per year.

The point: Santa Barbara County has the best-paid employees in the state and the third-best-paid employees in the United States. It also has a user fee of $870 that buys its citizens a two- to three-month wait for the performance of a two-hour “ministerial task.”

This is civil service without the service. Then there is the reduction in force from a head clerk plus three fronts to a head and one front. A reduction from four clerks to two clerks. Multiply those two clerks by 187 percent and the product is 3.75 clerks.

Getting Our Money’s Worth

Twice within the last six months, I’ve been in Department Four as the clock approached 4:30 p.m., and I’ve heard the presiding judge, Thomas Anderle, announce that he was going to make sure the remaining court time would be well-used, but by direction of "county management" he was compelled to adjourn all proceedings by or before exactly 4:30 p.m. — no matter what was happening in the trial. This is because 4:30 p.m. is the end of the state’s best-paid county employees’ workday.

Returning to the county CEO’s claim that workers in the private sector have more time off than county employees: What well-paid private-sector employee gets to leave work at the same time every day even if the company needs his help after 4:30 p.m.? Of course he stays and doesn’t resent it.

If Judge Anderle were in the IT business, he would have one of those desks fitted into the bottom half of a bunk bed, so that while engaged on a big project he could squeeze every minute of work out of every day. His reaction to being restricted in the amount of work he can do in his own courtroom must be somewhere between frustration and infuriation. If paid by the county, Judge Anderle would be a bargain, but alas, judges are paid by the state.

Marilyn Metzner has been Anderle’s assistant, alter ego, backup and Tonto for as long as I’ve known them — more than 35 years. Here’s my nightmare: Judge Anderle reads this column.

One day he says, “Marilyn, it’s only 4:30 and for once we’ve got nothing demanding immediate attention. Will you see if you can get Bucky on the phone? We can work on the files he’s complaining about. I’ll measure the placement of the holes at the top of each page, you can look for unchecked boxes, and Bucky can scrutinize each page for the correct font, ink color and paper weight.”

Your friend,

— 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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