The inside scoop on divorce, from the judge who's seen it all!
"Whatever you do, try to keep your case out of divorce court." These key words set the stage for A Judge's Guide to Divorce, which exposes a system in which everyone loses -- especially the kids.
Fortunately, there's hope: A Judge's Guide to Divorceshows you how to reach your own agreements outside the courtroom, in the most civil manner possible. But if court is unavoidable, this book will help you at every step. Find out about:
the alternatives to divorce court
how and where to get legal help
dividing property fairly
determining alimony and child support
settling custody and visitation issues
enforcing court orders
getting on with your life
Plus, the book comes with a CD-ROM that features an interview with Judge Duncan and audio scenarios that can help you get through divorce without court.
(Note: Audio files are not included with the eBook)
A Judge's Guide to Divorcedelivers straight talk from someone who has witnessed the war zone of divorce court firsthand. Find out how to avoid it -- and what to do if you can't.
Roderic Duncan was appointed to the California Municipal Court in 1975, and he was elected to the California Superior Court bench in 1987. Over the years, he has been a lecturer and faculty member at two dozen educational programs for judges. In 1990, he was chosen the Judicial Officer of the Year by the California State Bar, Family Law Section. Since retiring from the bench in 1995, he has been doing private judging and mediation.
Unless you're very lucky, you probably won't be able to totally avoid having to go into divorce court in the process of getting divorced, but you should do your best to make as little contact as possible with this jungle of bickering people, long delays, and harried and sometimes uninterested judges. This may sound like strange advice coming from a judge who happily spent most of his judicial career sitting behind the bench in a divorce court, but it is the best advice I can give you. I loved the work, but saw over and over again that the system stinks. Whatever you do, try to keep your divorce out of divorce court.
Later chapters of this book offer lots of advice about how you can keep your divorce out of divorce court. This one explains why.
A. A Look Inside the System
Divorce courts operate with the same basic rules used by the courts that deal with car accidents, disputes between giant corporations, and criminal charges from petty theft to murder. Unfortunately, these rules do not work well in solving the disputes that arise in the process of ending a marriage.
In most states, divorce courts are a branch of the local trial court—called the Circuit, Superior, or District Court. In Delaware, Hawaii, Massachusetts, New York, Rhode Island, South Carolina, and Vermont, these courts are entirely separate from the rest of the court system and are called Family Courts or something similar. Regardless of how they are labeled, the operating and procedural rules in these courts are the backbone of what is called "the adversary system." It is built on the ancient British practice of having lawyers representing each side of a case fight as hard as they can to defeat their opponents at a trial. The theory is that after hearing the evidence and argument from these lawyers, a neutral judge or jury will figure out who is telling the truth and reach a just decision as to which side wins.
Matters such as divorces were handled in merry olde England by officials known as chancellors in courts that were connected to the church. Juries were not used in these Chancery Courts—and to this day, juries are almost never used in United States divorce courts. Texas is an exception. But even there, jury trials are used only occasionally in divorces. More often then not, a Texas lawyer will use the threat of demanding a jury trial as part of an elaborate game of Chicken, as in: "If you don't agree to lower your claim for alimony, I'm going to insist that this case be decided by a jury."
In all states, especially in cases that involve big bucks, each side will normally spend months getting prepared for the trial. The lawyers will investigate the facts, take depositions of important witnesses, and subpoena records from banks, employers, and any other source they believe has relevant evidence. They may prepare charts and elaborate electronic presentations to illustrate their arguments. They skirmish in pretrial hearings to exclude harmful evidence and to narrow the issues that can be considered in court. All of this is in preparation for a trial that—if it occurs at all—will usually take place at least a year or two after the case was filed.
This is the way disputes that land in American courts are resolved. You can see dramatizations of these courtroom battles on television. One channel even devotes much of its time presenting scenes from splashy trials all day, every day. The system actually works relatively well to resolve a legal situation that doesn't involve divorce—such as a murder case, a major car accident, or a claim of medical malpractice. And if the stakes are high and the winner is going to be determined in a trial lasting days or weeks before a jury, the need for all of that painstaking preparation is understandable.
A Glossary of Divorce Jargon
Each state has its own rules spelling out the procedures to obtain a divorce. Here is a brief description of the terms you're likely to encounter in connection with divorce—and the legalities generally involved in each one.
Default divorce. One of the spouses prepares the papers for a standard divorce and gets a summons issued by the court. The other spouse is served with these papers, which specify that he or she has a certain number of days—usually 30—to have a voice in the terms of the divorce by filing an answer. If no response is filed within the time allotted, the spouse who originally filed asks the court to declare a default. If the court clerk finds everything in order, the default is entered and the divorce is granted. In some states, the whole process can occur without a personal court appearance by either of the people being divorced. A judge will normally review the divorce provisions to make sure they appear to be fair. Some people who have reached a total agreement and really trust their spouses use this method to avoid paying a second filing fee and to get the divorce processed quickly.
Legal separation. This is an alternative to divorce that is usually used, by people who have religious restrictions on divorce or financial advantages to remaining legally married. Like a standard divorce, it has provisions for support, child custody, and division of the couple's property; however, the parties remain legally married. In New York, filing a legal separation agreement can be the first step in obtaining a divorce a year later, without a showing that either spouse is at fault for causing the divorce.
Simplified, summary, or expedited divorce. Some states have streamlined procedures that go by one of these titles. They require special forms and are frequently limited to cases in which couples have been married for less than five years, have no children, own no real estate, and where neither is asking for support from the other. There are often additional requirements, which vary from state to state.
Uncontested divorce. One of the spouses files the necessary papers for a standard divorce, the other files the required answer—and then the parties present the court with a written settlement agreement including the terms for support, child custody, and division of their property. The package is presented to the court, reviewed by a judge and the divorce is granted, often without either of the parties having to appear in court. Some states have a similar provision that allows the parties to file a joint petition for divorce.