from the Los Angeles Times, Sunday March 4, 2007, page C3

Personal Finance
by Kathy M. Kristof, Times Staff Writer

Retired judge: Court-based divorce is out of order
Alternatives such as collaboration and mediation generate less expense and stress, Roderic Duncan says.
March 4, 2007


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.

When the issues are more complex, the parties are unequal — only one partner works, for example — or one party appears unwilling to play fair, do-it-yourself divorce may not be an option.

But there are still several alternatives to court that may settle the split more cheaply and amicably, Duncan said.

Mediation: Many courts now require divorcing couples to meet with a mediator before they meet with a judge — even if they're intent on going to court.

Court-trained mediators are familiar with the rules of family law and can advise the warring parties when their requests are unreasonable or are likely to be rejected.

Their hourly rates often are half — or even less — of the cost of a divorce attorney. The process also encourages cooperation — sharing of financial information, for example, thus eliminating the need for subpoenas, discovery and a raft of hearings that drive up legal fees and accomplish little.

Duncan contends that a successful mediation can take eight to 10 hours and cost less than $5,000. Better yet, the nature of mediation ensures that any settlement works for both sides because nothing is settled until there's agreement, he added. And judges habitually will rubber-stamp any reasonable agreement that has been accepted by both sides.

Collaborative divorce: The hottest trend in divorce is something called collaborative law. In a nutshell, each party hires lawyers, but both sides agree that the lawyers will be used to help settle the dispute rather than litigate it.

In some cases, the lawyers will suggest that both parties also hire other experts, such as psychologists and financial planners, to help understand the repercussions of their actions.

We are able to treat the divorce as a financial restructuring, where you get tax specialists and financial planners involved, so that both sides come out with a plan for going forward," said Pauline Tesler, a San Francisco family law attorney and coauthor of "Collaborative Divorce."

"We are looking at this not as a battle but a way to get on with your life."

The cost: If the process is successful, the fees usually run $15,000 to $30,000, experts say.

But if one party breaks the agreement and opts to file in court, the attorneys on both sides quit and the entire divorce process must start over.

What brought Duncan to the conclusion that traditional dissolutions don't work?

It was probably the baby pass.

One day a couple came into his court, with the father holding a baby in his arms. The hearing was about the fact that the father had taken the child for the weekend and refused to give him back.

The father contended that the mother was unfit, and he would not relinquish custody. Duncan insisted that the father hand the child to his mother for the remainder of the court hearing.

Instead, the father threw the child to a waiting friend and attempted to flee the court. He was arrested.

"The thing that's wrong with the divorce system is that we try to cram it into the framework of everything else that happens in court, like automobile accidents and murders," he said.

"We've decided that to get to the truth, we line little armies up on opposite sides of the court and try to convince the judge that this army or that army is right.

"That may work well in a murder trial," he said. "It doesn't work at all with a divorce."