PRIVATE JUDGING
For High-Asset Divorce in California
“As a family law attorney, I want to get cases resolved. I want my clients to be able to get on with their lives. And the public court system can be really challenging. So, I like the immediate access to judges who are extremely well-versed in what they do, and I can get all the issues on my case resolved more quickly. “
Amy Laughlin | Founder & Partner, Laughlin Legal Divorce & Family Law Group
AMY
LAUGHLIN
on
24/7 Access
Although the statutory framework for it dates back to the 1870s, private judging as we know it today took off in California in 1976 when two enterprising Los Angeles attorneys on opposite sides of a case cited California Code of Civil Procedure §638 permitting appointed ‘referees’ to resolve civil disputes as long as both parties agree. They agreed upon a retired judge to act as referee, the case resolved within 7 months, and they saved their clients a bundle. Private judging was reborn.
California was the first state to implement private judging, and others soon followed, though it’s impossible to ascertain the percentage of divorces resolved in private court in any state today. Anecdotally, however, the popularity of private judging in California for family law matters is definitely growing. Amy Laughlin, Founder and Managing Partner of Laughlin Legal Divorce & Family Law Group in Silicon Valley has seen a palpable increase in the numbers of clients who know they have private judging options and request private judging. In her response, below, to frequently asked questions regarding private judgings, Ms. Laughlin explains why, if it were up to her, all of her clients with few exceptions would pursue private judging.
Q Who should be seriously considering hiring a private judge for divorce in California?
AMY LAUGHLIN I think everybody should consider hiring a private judge. It’s a huge industry in California and it offers clients a measure of control over the length of time it takes to reach a settlement.
Q What exactly is private judging for divorce in California? How is it different?
AMY LAUGHLIN I read somewhere that over 90% of dissolutions are being handled by the public court system, and that leads me to assume that not as many people know about it as we legal professionals think. So, private judging is this incredible resource in California. These private judges are typically retired judicial officers of the family law bench who’ve been doing this for 20, 30, 40 years in the public court system, incredibly knowledgeable and experienced, and they make themselves accessible privately.
As a family law attorney, I want to get cases resolved. I want my clients to be able to get on with their lives. And the public court system can be really challenging. So, I like the immediate access to judges who are extremely well-versed in what they do, and I can get all the issues on my case resolved more quickly.
Q Is privacy in high asset divorce a primary reason for using a private judge for divorce?
AMY LAUGHLIN Privacy is certainly a primary reason. Say you file a request for an order to divide a certain venture capital interest. In public court, that hearing is potentially held in front of dozens of other people waiting their turn in a public courtroom while listening to you divulge the details of your financial matters. Technically, the public is allowed to be there because most family law proceedings are public. When you walk into family law superior court, there’s generally a posting of all the names of all the hearings that are taking place, and that information is also accessible online. So anyone – including journalists – can pop in and learn all about the most private aspects of your life.
Whereas if you have a private judge, though it is still considered public information, the date and time and names are not posted. So in private court, nobody but you, your spouse, your attorneys, and your judge are going to be there.
Another very key reason for choosing private judging is expedience. It’s not only private, it’s simply faster. If you were to need relief from the court, say, for example, your co-parent is not giving you access to your children, you would want immediate access to the court. But if your divorce is being handled in public court, you may not be able to get into the court for 2 to 3 months, sometimes longer. And how is that going to affect your children? If you hired a private judge, you’d very likely be able to get in the same week.
Courts in California have been backlogged for quite some time, but they have become incredibly backed up ever since COVID. There have also been budget cuts. Judges are handling hundreds and hundreds of cases and they work 40 hours a week at the most.
Q Do you specifically need to hire a private judge divorce attorney?
AMY LAUGHLIN No. All attorneys work with private judges, but not all private judges work with every attorney! So if you’re wanting to work with a private judge, it’s really important to know the level of experience the attorney you’re considering hiring has with private judges and which ones they work with.
Q Family law courts are still backed up from covid. Does that affect private divorce proceedings in California?
AMY LAUGHLIN No. Fortunately, the backup of the public court system has nothing to do with how things proceed in a private setting. So, you’re free and clear about that. You can generally get everything resolved in the private court system relatively quickly.
There is, however, one area that private judicial officers are not able to address, and those are issues of domestic violence. Cases involving any form of domestic violence must be heard in the public courts.
Q Does hiring a private judge for divorce cost more than public court?
AMY LAUGHLIN So, the judge assigned to your case in public court doesn’t directly cost you anything. A private judge on the other hand you pay by the hour. In my experience, the fee can start as low as $650 per hour up to $3,000 per hour for top tier private judges.
But again, the longer your case is pending, the longer you have a lawyer representing you, the more costly it becomes. So, with private judging, because you get your matter resolved more quickly, in my opinion, on average, the overall cost is less.
Q For a high net worth divorce is a private judge essential?
AMY LAUGHLIN Maybe not essential, but is it preferable? For my clients, almost without fail.
I’ll tell you what can be essential is the ability to choose the best judge you can find for a certain client. In the public court system, in my experience, there are many amazing, deeply experienced judges. But there are also judges in their first year on the bench.
And not just any judge can become a private judge. They have to be an active member of the State Bar of California, take an oath of office, meet the ethical requirements, and if someone chooses to work with them, they have to be approved by the presiding judge of the local superior court.
In my experience, private judges typically have many years in family law under their belt. They’ve seen it all. And trust me, they’re as selective of the attorneys they work with as the attorneys are of them. Generally, these are really superior judges.
Q So a private judge for high asset divorce is chosen, not assigned?
AMY LAUGHLIN Yes. This is one of the principal advantages of private judging. So, in the private court system, both parties participate in choosing and have to agree to the choice of judge. But the parties rely heavily on their attorneys and their experience in working with private judges. The attorneys will each exchange a few names in collaboration with our clients, and all 4 of us will jointly pick someone.
Most of the private judges I’ve worked with, I have worked with multiple times. I know their style, I understand how they rule on certain issues although all facts of whatever case are different. But I have a general understanding of their positions on things.
Terminology
Private judging is an alternative means of dispute resolution that occurs outside of the public court system.
The common definition is a divorce where the joint estate is valued at a minimum of $10M. Laughlin Legal’s high asset divorce clients are more often defined by the complexity of their assets than the size of their estate. Carried interest, RSUs, stock options, passive income, these are the assets that contribute to the complexity of high asset and ultra high asset divorce.
The traditional court system where proceedings are conducted in a public government courtroom presided over by a judge who has been appointed to the case.
As it relates to divorce, an alternative means of dispute resolution where the two parties agree to conduct their divorce proceedings in private by hiring a private judge. Private divorce proceedings follow the same rules and steps as public proceedings, and the judge’s rulings are legally binding.
AMY
LAUGHLIN
on
Complex UHNW Divorce
HOW YOUR ESTATE PLAN CAN PREVENT YOUR FAMILY FROM BREAKING UP
As an estate planning attorney working for a family law office and practicing estate planning law here in San Mateo, Santa Clara, San Francisco, and Contra Costa Counties in California,
Next Step
Book a consultation.
Let’s talk about your divorce and how private judging might help you attain an even better outcome.
If you’re looking for some of the best divorce lawyers in Silicon Valley and San Francisco Bay Area, let’s talk. Call us at 650.343.3486 or email us here.
Let’s get started.
Fast
FAQs
Where do you find a private judge in California?
Just about any experienced divorce attorney in California has already worked with a number of private judges, knows their style and preferences and will make a recommendation to you and then to opposing counsel.
Do both spouses have to agree to use a private judge?
Yes, they must. One party cannot unilaterally dictate that.
Is a private judge's decision legally binding in California?
Yes, as long as both parties agree to give that judge the authority.
What can I expect to pay a private judge for my divorce?
While it’s impossible to estimate the cost of your divorce proceedings, the private judge you choose will charge anywhere from $650 to $3,000 an hour but it’s split by both parties.
Should you hire a private judge for a divorce that is not high-asset?
Though it’s a personal choice, it can still be advantageous because it’s typically faster and less expensive, and everybody’s entitled to their privacy, not just wealthy people.
The FOREFRONT A divorce & family law blog
Taking a divorce case to court can be exhausting, confusing and stressful. Delays due to courts being overloaded with cases and unpredictable schedule