Judicial System Observations by Michael Roosevelt, Law Clerk

>During the recent debate in the Vermont legislature, a state representative asked for my ideas on how things might be improved. The following were suggestions which, although beyond the scope of the judicial reform bill, address some examples of extra legal expense and extra time in the system. Since I am most familiar with family court, I used examples from that area of the system:

1. At the moment, in a divorce proceeding, the court takes up the value of the marital estate closest to the date of the final hearing in order to make a distribution of the assets. Under the current circumstances, a contested divorce with significant assets may take two years to work its way through the system to a final hearing. Due to the time between the initial complaint and the final hearing, the spouse with the most assets has abundant opportunity to dilute assets, reduce business and employment income, and generally “game” the system in order to reduce liability when it comes to spousal support and the final distribution of assets.

In addition, specific information is needed to go to the case manager’s conference at the start of a divorce (a complete financial affidavit [Form 813], the last two years’ tax returns, four most recent paystubs, etc.) This information is the basis for temporary support, temporary child support, etc. Subsequently, with status conferences, various motion hearings, etc., there can be extensive discovery in the form of interrogatories and requests to produce, followed by intermittent requests to supplement financial and asset information. This type of repetitive discovery becomes very costly to both parties.

A solution to this problem might be to use the value of the marital estate at the time the initial complaint is filed as the baseline rather than the value closest to the final hearing. This may not be a popular approach, but it would probably cut down on the amount of attorney and court time in these situations.

2. Again – in both divorce and post-judgment situations in family court – the Form 813 is the anchor with which most cases are moored. The court would do well to insist that this affidavit – which is submitted under oath – be accurate and backed up with verifiable data. If at the outset the Form 813 was agreed to be accurate by the parties and the court, it would eliminate a great deal of unnecessary and repetitive discovery.

3. The family court uses Child Support Guidelines to determine how much a non-custodial parent must pay in child support. The use of this guideline helps to simplify this calculation, and deviations are permitted under various circumstances. Without such a guideline, child support matters would be much more drawn-out and there would be a great deal more litigation.

It has been suggested – and indeed there have been efforts to do so in Vermont – that Spousal Support Guidelines should also be developed. Some other states and jurisdictions have already tried this with varying degrees of success. Consistent use of such guidelines could reduce litigation in divorce because they would make it clear to stubborn spouses that no matter how much they may twist and turn in court, eventually they will be on the hook for a predictable amount of support and they are wasting time and money trying to evade their responsibilities.

4. Finally – and this observation applies more or less across the board – litigation and court time could be reduced if (a) courts are decisive when it comes to making decisions and (b) courts enforce both their rules and their orders, once made. If indecisive, courts open the door to abuse of the system, and such abuse wastes time and money. If one step toward reducing costs in other areas of government is to cut “waste” – surely one step that should be applied to the court system is to cut the wasted use of the court system for frivolous cases and pleadings.

In a nutshell, enforcing existing laws and court rules, not tolerating the waste of the system, and making full use of the existing resources might greatly reduce the need for reform.