Buy­ing pri­vate pro­ceed­ings

Sorry, celebrity watch­ers, the Jolie-Pitt di­vorce won’t likely play out in pub­lic

Baltimore Sun - - COMMENTARY - By Jane C. Mur­phy Jane C. Mur­phy is the Lawrence M. Katz Pro­fes­sor of Law at the Uni­ver­sity of Bal­ti­more and the co-au­thor of “Di­vorced From Re­al­ity: Re­think­ing Fam­ily Dis­pute Res­o­lu­tion” (NYU Press, 2015). She can be reached at jmur­

The only thing the pub­lic loves more than news of a celebrity ro­mance is the prospect of its ugly dis­in­te­gra­tion. No sooner had news bro­ken of An­gelina Jolie’s in­tent to di­vorce Brad Pitt than head­lines be­gan to fly about the “bruis­ing” and “ugly” court fight ahead. As a fam­ily law teacher and scholar, I ex­pect that those an­tic­i­pat­ing a grisly court­room show­down will be dis­ap­pointed.

An­gelina Jolie has filed for di­vorce from Brad Pitt in the Los An­ge­les County Su­pe­rior Court. The brief length of their mar­riage and Cal­i­for­nia’s com­mu­nity prop­erty laws will make the fi­nan­cial is­sues rel­a­tively easy to re­solve. And An­gelina has asked for joint le­gal cus­tody — mean­ing she and Brad will share all ma­jor de­ci­sions re­gard­ing their six chil­dren.

But An­gelina also checked the “sole phys­i­cal cus­tody” box on the com­plaint for di­vorce. She wants an or­der stat­ing that the chil­dren, rang­ing in age from 8 to 15, will live with her. This is where the much an­tic­i­pated “bat­tle” comes in.

Me­dia re­ports have been pre­par­ing fans to watch as An­gelina, de­ter­mined to re­duce Brad to a “vis­i­tor” in the life of his chil­dren, of­fers de­tails of their pri­vate life in court fil­ings and tes­ti­mony that casts her ex-hus­band-to-be as an un­fit fa­ther. And, to get a sole cus­tody or­der over Brad’s ob­jec­tion in a court bat­tle, An­gelina would have to demon­strate that his tem­per and judg­ment make shared phys­i­cal cus­tody in­ap­pro­pri­ate and not in the best in­ter­ests of the chil­dren.

But the chances that any mud­sling­ing will take place in a pub­lic court bat­tle are ex­tremely low. Given their wealth, their de­sire for pri­vacy and, one as­sumes, their con­cern for their chil­dren, Brad and An­gelina are un­likely to re­solve this fam­ily con­flict in court. Fam­i­lies with money can now choose when and how much the state will be in­volved in their breakup and re­or­ga­ni­za­tion.

As Brad dis­cov­ered dur­ing his 2005 di­vorce from Jen­nifer Anis­ton, you can in­deed buy “jus­tice.” Al­though the fact of the cou­ple’s split was widely pub­li­cized, the di­vorce it­self was com­pletely pri­vate.

Cal­i­for­nia and sev­eral other states per­mit cou­ples seek­ing a di­vorce to ask a court to re­fer them to a pri­vate judge. The court del­e­gates full power to such a judge to ap­ply the law and to make a de­ci­sion that, once rub­ber-stamped by the court, is Brad Pitt and his wife An­gelina Jolie at­tend the pre­miere of her movie “Malef­i­cent” at Kens­ing­ton Palace in Lon­don in 2014. Jolie filed for di­vorce last month. bind­ing on both par­ties. The cost to the di­vorc­ing cou­ple is steep — up to $1,000 an hour. But it all hap­pens with­out any of the loss of pri­vacy and con­trol that comes with tra­di­tional court pro­cesses.

The op­tions for pri­vate jus­tice have ex­panded since 2005, par­tic­u­larly in di­vorces in­volv­ing chil­dren. There has been a ma­jor par­a­digm shift in child cus­tody cases that be­gan in the1970s, driven largely by re­search demon­strat­ing the detri­men­tal im­pact of ad­ver­sary pro­cesses on chil­dren. Re­ly­ing on tra­di­tional court pro­cesses at best fails to mit­i­gate parental con­flict and at worst ex­ac­er­bates and pro­longs dis­cord. When a cus­tody case does go to trial, the ev­i­dence and coun­terev­i­dence of bad be­hav­ior and de­fi­cient par­ent­ing typ­i­cally in­tro­duced fu­els hos­til­ity and en­gen­ders long-term mu­tual dis­trust.

The fo­cus, there­fore, is now on agree­ments ne­go­ti­ated by third par­ties out­side the court sys­tem, and a wide range of op­tions are now avail­able to cou­ples like the Jolie-Pitts. Al­though tra­di­tional lawyer-di­rected ne­go­ti­a­tion still ac­counts for many set­tle­ment agree­ments in fam­ily law, me­di­a­tion is in­creas­ingly the pre­ferred op­tion to re­solve di­vorce-re­lated par­ent­ing dis­putes. In me­di­a­tion, a neu­tral third party helps dis­putants ar­tic­u­late their in­ter­ests, im­prove their com­mu­ni­ca­tion and reach an agree­ment about co­par­ent­ing chil­dren af­ter a di­vorce. Fam­i­lies with re­sources can choose the me­di­a­tor and take the time they need to reach a de­tailed “par­ent­ing plan” de­signed to fit their fam­ily.

A va­ri­ety of other pro­cesses also have de­vel­oped to ad­dress par­tic­u­lar stages in the sep­a­ra­tion and post-di­vorce par­ent­ing process. Th­ese in­clude “early neu­tral eval­u­a­tion,” which gives par­ties an ob­jec­tive as­sess­ment of what will be good for their chil­dren and what is likely to be or­dered by a court.

Choos­ing a “col­lab­o­ra­tive” di­vorce is yet an­other op­tion to avoid court. In a col­lab­o­ra­tive di­vorce, par­ties and their at­tor­neys sign a “four-way col­lab­o­ra­tive par­tic­i­pa­tion agree­ment,” in which all par­tic­i­pants com­mit to re­solv­ing the dis­pute out of court and agree that the lawyers must ter­mi­nate their rep­re­sen­ta­tion if the par­ties do end up in court.

Of course, all of th­ese new, out-of-court pro­cesses in­volve ex­pen­sive lawyers or other ex­perts or both. Most of th­ese ap­proaches re­main out of reach to the vast ma­jor­ity of Amer­i­can fam­i­lies. But for wealthy cou­ples like Brad and An­gelina, a non-court-based op­tion will pro­vide them what all fam­i­lies in tran­si­tion should get — sup­port, heal­ing and the peace­ful res­o­lu­tion of dis­putes.


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