Judge Duncan's Alternatives to Divorce Court; Collaborative Law Explained

Judge Roderic Duncan, who spent a decade deciding which spouse would receive custody, support and assets in the crowded family law courts of Oakland, has some unusual advice for warring couples: "Stay out of court."

His logic is as follows:

Divorce court is:

* Costly (up to $100k)
* Time-consuming (a year or more)
* Inefficient (often neither side is satisfied)
* Stressful (goes without saying)
* Overly divisive (think "War of the Roses")
* Harmful to the children (brings out the worst in people)

Looking back at his experiences on the bench, Duncan believes "...we created a system where the impetus is to fight and contest and nobody gets the result they want. There are so many alternatives available that are better and cheaper and involve so much less stress." Specifically Duncan recommends that couples first explore mediation and "collaborative divorce".

Duncan breaks the divorce negotiation to the following four components:

* Child custody
* Child support
* Alimony
* Division of assets

If these issues are simple, for example no kids and few assets, then according to Duncan couples can work out a settlement between themselves. But he recommends that couples always have an agreement reviewed by an attorney to "spot clear inequities and violations of law or regulation and bring up issues that the couple may have forgotten." (Here is another reason to have an attorney review paperwork even in the most basic do-it-yourself divorce).

When a DIY approach is not applicable (children, assets, or just a failure to agree on key issues), Duncan recommends couples explore the following alternatives before resorting to divorce court.

Mediation:

Court-trained mediators: a) are familiar with the rules of family law, b) can advise the warring parties when their requests are unreasonable or are likely to be rejected, and c) have hourly rates that well less than th 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 estimates a successful mediation can cost less than $5,000.

Collaborative Divorce:

Collaborative law is a hot trend right now in divorce and both sides agree in advance that the lawyers are to be used to help settle the dispute and not to litigate it. Lawyers and clients sign a "participation agreement" which provides that if the parties are unable to reach a settlement, the lawyers will withdraw from the case. In this way they remain ethically and financially motivated to see through a mediated settlement instead of moving on to trial attorneys. Most importantly, they gain nothing by an escalating dispute.

According to the website "CollaborativeLaw.com", in addition to your and your spouse's collaborative attorneys other experts or consultants such as coaches, financial specialists, appraisers, mortgage brokers and vocational experts might become involved. "Unlike traditional litigated cases, where the parties hire competing experts to 'fight it out', both parties in the collaborative process jointly retain the experts they need and consider the options the experts present."

Costs can range in $15k to $30k according to experts familiar with the process.

Judge Duncan strongest argument on what ills the traditional system of divorce is that:

"...we try to cram it into the framework of everything else that happens in court, like automobile accidents and murders. 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, [but] it doesn't work at all with a divorce."

Judge Duncan details his opinions in his new book on divorce entitled A "Judge's Guide to Divorce: Uncommon Advice from the Bench."

Quotation source: LA Times