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SAN JOSE — Divorce is never easy. But more and more couples are finding it can be quicker — and quieter — when done in private. Family lawyers, especially those representing wealthy clients, are increasingly opting to go to a private judge rather than wait for a turn in clogged divorce courts. Lawyers in the South Bay say they can hire a private judge for $300 to $800 an hour, and sometimes resolve a case within a couple of days. For the South Bay’s many millionaires — and even middle-class couples — it’s money well spent. “The court system is awfully slow,” says Paul Jacobs, a partner with Hammer & Jacobs in San Jose. “There is so much more flexibility with a private judge. It’s more civil. They want to keep the lid on people getting out of control.” “The thing about people with wealth is they like privacy,” adds Donelle Morgan, a partner with San Jose’s McManis Faulkner & Morgan. Morgan — who once helped former San Francisco 49er quarterback Joe Montana through a divorce — said her clients seem to find a private judge’s law office less intimidating than a courtroom. Like a growing number of family law attorneys in the San Jose area, Morgan says she does most of her work through private judges. Private judges hearing cases by stipulation are essentially granted all the powers of a sitting superior court judge, and hearings held in their offices remain public. Of course, the odds of a reporter or anyone else stumbling into one of these hearings is low. And when couples agree to arbitration or mediation before a private judge, only the final decree is public. “It just seems like such a civilized manner for people who are going through divorces,” Morgan said. Hiring private or retired judges to referee complex divorce proceedings is nothing new, but in recent years, it has become the norm rather than the exception. Lawyers say this avenue is smoother, more efficient and personal and, in the long run, cheaper than family court. “There was a big turn to private judges because of a concern with predictability.” said Mia Mosher, an attorney with Marsten & Mosher, a family law firm in San Jose. “It is really access to the court that is the biggest issue,” says Mosher, adding that she sometimes has to wait eight months before she gets a trial date in Santa Clara County family court, where six judges handle about 8,000 cases a year. “Private judges are much better suited for settling [these] matters because they have time to take them on and research them,” Mosher said. Judge Patrick Tondreau, who’s spent the last three years in Santa Clara family court, is the first to admit that he can’t dedicate the same amount of time to divorces crossing his desk that a private judge can. “There are only 55 trial days a year,” he said. But he said divorcing couples are still well-served in family court. “We have a tremendous amount of services here,” he says. It may take a bit longer, he adds, but the cases get resolved. That may be true, but fewer clients want to wait. “Most cases I do by telephone,” says Donald King, a former family court judge and First District Court of Appeal justice who is now with the American Arbitration Association in San Francisco. Private judging is becoming more common in part because the “court system has deteriorated,” King says. “The most complex cases are going to the judge who knows the least about this law.” Of course for those with a simple, uncontested divorce, hiring a private judge is probably a waste of time and money. Those couples simply have to fill out their paperwork, turn it into the court, and their divorce is granted in six months. Still, King warns that divorcing couples should at least have a family law attorney read through their paperwork before filing their petition with the court. “Something could come back and haunt them later” if they don’t, King said. King — who charges $500 an hour and oversees five or six South Bay cases per year — is among a small group of private judges that lawyers say they turn to for their professionalism and ability to resolve matters quickly. Jacobs said it took him a while to warm to the process. “I used to think it was not worthwhile to hire a private judge, because you have the additional expense,” Jacobs said. But he quickly found that having a divorce case stuck in superior court for months can add up. Lynne Yates-Carter, a family law practitioner in San Jose, says she prefers private judges because of the flexibility. “You can structure your own hearing. You can cut through some of the procedural issues you have in family court.” Neville Spadafore of Lundell & Spadafore has been doing private judging in the South Bay for 15 years. He suspects the growing interest in private divorce proceedings comes from word of mouth. Richard Berra, a private judge based in San Mateo, said the soaring divorce rate also has increased business. “It certainly has gone up over the last 10 or 15 years,” says Berra, a partner with Berra Stross & Wallacker. In addition to King, Spadafore and Berra, other private judges who are frequently used by South Bay attorneys include: Harry Hanson Jr. of the Hanson Family Law Group in San Mateo; retired Santa Clara County Superior Court Judge Read Ambler, who now works for JAMS; Dennis Durkin, a solo practitioner in Redwood City; and Diana Richmond, with Sideman & Bancroft in San Francisco. Berra points out that lots of people in family court represent themselves, and criminal and civil dockets are overflowing. “The courts are so overwhelmed,” he says. He likes his job. “I find myself very fortunate that I am able to do it,” he said. “I feel like we are assisting the court system.”

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