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Courts meant to serve the public

Gregg Herman is a family law attorney with Loeb & Herman in Milwaukee. He is board certified in Family Law Trial Advocacy by the NBTA, a fellow of the American Academy of Matrimonial Lawyers and is a former chairman of the Wisconsin Bar Association and ABA Family Law Sections. In addition to writing for the Wisconsin Law Journal on family law issues, he operates Wisconsin Family Law Case Finder, a legal research site for family law practitioners. He welcomes comments at [email protected]

Though I try to discuss new topics in each of my columns, every once in a while, there is something which merits further discussion.

Such is the case with a simple idea: Courts should serve the public. In particular, parties should be allowed to be divorced without the costs and inconvenience of a public court appearance.

Wis. Stats. §767.235(1) requires that “…all hearings and trials to determine whether judgment shall be granted…shall be before the court.” However, this is a statutory right. Criminal defendants frequently waive their rights to a jury trial, representation by counsel and other important constitutional rights. If a constitutional right can be waived, so can a statutory right.

During the pandemic, several counties allowed parties to waive a personal appearance and get a divorce by submitting the necessary paperwork, including an affidavit specifically waiving this right. The result was magical: Less cost, less pressure, no harm done. For some reason, some counties have either ended or are considering ending this process.

The primary argument for personal appearances is that it allows the court to confirm that the parties knowingly and voluntarily entered into the agreement and that preventing the court from making this assessment in person could lead to problems down the road if one of the parties challenges the agreement. That’s possible, but how often does such a challenge ever occur? And – in the rare event it does – is it worth the cost which is incurred in all of the other cases?

The cost of a personal appearance is not only the increased attorney fees for traveling, parking and waiting (for a virtual court appearance, an attorney can be doing other work while waiting.) But also, the parties may need to take off of work or find day care. In addition, many parties are intimidated by going to a courthouse and appearing before a judge. So, the test is weighing potential rare benefits against known and certain costs.

As I wrote in a previous column, one theory of our system of American jurisprudence is that we have 51 laboratories for experimentation (including Washington D.C.) and there should be some cross-learning. So as a totally unscientific experiment, I asked some friends who are experienced family-law attorneys about the rules in their states. Even though I sampled only a fraction of the total of 51 laboratories, lawyers in the following states advised that no personal appearance is required for most or all default divorces: Oklahoma, Oregon, Alabama, Pennsylvania, California, Kentucky, New Mexico, North Carolina and South Carolina. All reported no difficulties with this process.

The benefit vs. cost equation seems so obvious, one wonders why there is any opposition by the courts. After all, lawyers overwhelmingly (in my own unscientific poll) support divorce by affidavit, although they would make more money if a personal appearance were required. Do judges think there is a political benefit to seeing parties in court? If so, I think they are wrong.

To the extent that there would be any political benefit, it would be surpassed by servicing the best interests of the public. As idealistic as that goal may be, it is still a good one.


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