If you have a high assets divorce case, sooner or later you are going to wonder whether your case should remain in the public family law court system or whether your should hire a private family law judge for your divorce.
This is not a decision that should be taken lightly nor is it one that you should make without knowing the advantages and disadvantages of each.
In this article, we’re going to talk about the public court system versus using a private family law judge and give you some food for thought. The following are not all the factors you should take into consideration and we encourage you to contact our lawyers so we can discuss the specific facts of your case in an initial consultation and, together, we decide whether or not your case is better suited for a public judge or a private one.
The potential advantages of a private family law judge in a divorce case
Here are some of the advantages to using a private family law judge in a divorce case:
1. A private family law judge may move your case along faster: While that is not a certainty in every case, most family law cases with a private family law judge will get to a hearing and resolution faster because a private judge doesn’t have to deal with thousands of other cases and family law litigants.
2. A private family law judge may have more time to dedicate to your case: This is different than just moving your family law case along. This deals with how much time the private family law judge will have for the specific facts of your case as well as the law that may apply to it. Public family law judges in the court system have to juggle many cases on a docket.
Imagine if there were 35 divorce and paternity cases on calendar and one of them was yours. Now imagine that you have one judge dedicated solely to your case for an entire morning or potentially the entire day. Under which of these circumstances do you believe your family law case will get more attention? A private judge may simply have more time because he or she will have less cases to handle.
3. A private family law judge may have more experience than a public one: This one may surprise you but I will explain. While again not true in every case, many private judges who handle family law cases are either former family law attorneys and/or former family law judges who have since retired. In a public court system, there are experienced family law judges as well as inexperienced ones.
Since you don’t get to pick your judge in a public court system (although you do get to recuse a judge one time at the outset of a case so long as you file your request on time) you may get a public family law judge who is a former family law attorney with many years of experience or you may get a former district attorney or private attorney who did not practice family law or did very little of it. In addition, in a public court system, you may get a family law judge who is brand new not just to family law but to being a judge at all.
Potential disadvantages of a private family law judge in a divorce
1. The biggest disadvantage of a private family law judge is going to be the cost: Most private judges will charge you as much as your attorney, if not more. That means every single document you file and that is read by the private judge is going to be billed to you and/or your spouse. In a complex case, this could result in tens and potentially hundreds of thousands of dollars in fees that you will spend on a private family law judge.
2. A private family law judge may be more hesitant to award attorneys fees in the form of sanctions: This one is less likely but it is worth at least discussing. If you are a lawyer and you and your client hire a private family law judge on the case and that judge ends up punishing your client in the form of attorney fees pursuant to California Family Code 271 for your client’s conduct, are you more or less likely to use that private judge again?
There’s a risk, the matter how small, a private judge may be more lenient toward a difficult or uncooperative party or even a lawyer. While the best private family law judges would not hesitate to award sanctions or attorneys fees when the facts and law calls for it, it is still something you should at least be aware of or consider.
That is also why choosing the private family law judge is extremely important and you should make sure that the private judge not only comes in with knowledge and experience but is willing to make difficult decisions when necessary.
The advantages of a public family law judge
There are distinct advantages to having a court in the public system. Let’s discuss some of those.
1. You are not paying for a private judge: Now, you may say, of course I am. My tax dollars pay the salary. That is true. However, your tax dollars are not paid to the judge at $400 to $650 per hour, which is typically what a private judge can cost you.
2. Pressure to resolve issues: One of the advantages of a public court system is that it places tremendous pressure on the spouses as well as the divorce lawyers to resolve disputes.
When the spouses and lawyers know that continuing to litigate in court will not only become very expensive for the clients, but could cause a case to be delayed for many months and sometimes even years; everyone may be more motivated to resolve the case. Unlike having a private family law judge in which the judge is always at your disposal to use and that of your spouse, in a public setting both the lawyers and the spouses have to balance litigation with resolution.
3. Justice may be better served in a public court system: We touched on this issue already but it’s important to remember that a public judge is either an elected official or appointed by the State Governor. No family law judge wants to be reversed on appeal and no judge, especially a family law judge, may want to tolerate unreasonable litigation tactics.
Knowing whether to choose the public family law court system or a private one is not an easy decision. The simple fact that case maybe high asset or higher income may not be, by itself, justification to take a case out of the public court system. Our divorce attorneys will discuss the specific facts of the case with you so you can make an intelligent and informed decision. Contact us for an initial consultation and let’s get your divorce case started on the right track.
Would you like some related reading? We know planning for a divorce is hard. Public judge? Private one? But one of the more difficult aspects of it is how to tell your spouse you want a divorce? We hope you enjoy our articles and please call us if you have any questions.