California's new $435 divorce won't solve the underlying problems

Want to get married? In Los Angeles, a marriage license costs $91. Want to get divorced? That's going to cost you.

The statewide average cost of a divorce is $17,500, increasing to $26,000 if children are involved, according to Martindale-Nolo Research. 

A new state law, which went into effect this month, aims to cut that cost dramatically, expanding an alternative option for filing for divorce that costs just $435 to any couple who wants to use it.

That sounds great, and for some couples, it will be. But it won't fix the underlying issues that have made California the most expensive state in the union to get divorced.

I give credit to state Sen. Ben Allen (D-Santa Monica) and Gov. Gavin Newsom for broadening the joint petition for summary dissolution to any couple interested. They clearly understand that the state needs to do more to make divorce affordable. 

Under the summary dissolution option, couples can get divorced by jointly filing, rather than the traditional route of one partner suing the other for divorce. This is one of the biggest cost-savers in the bill, as it eliminates the need for process servers to serve papers on the other spouse.

The couple must submit to the court a list of their assets as well as the issues they intend to resolve on their own, including the legal grounds for separation, child custody and support, spousal support, division of assets, restoration of former names, and attorneys' fees. 

That's a lot to work through.

As a veteran divorce attorney, trust me when I say that if a couple could work out all those thorny issues on their own, they probably wouldn't be getting divorced in the first place.

But summary dissolution also isn't going to work in cases where there's been infidelity, where a spouse is physically or psychologically abusive, or where there is a power imbalance in the family finances. 

Before the recent change, analyses of the annual Court Statistics Report estimated that 5 to 10% of divorcing couples in California took advantage of the summary dissolution option. That was largely because it had strict requirements that barred couples who owned a home, had children, or owned even modest assets. 

The new law removed those requirements, which the bill backers say will increase the number of couples who use that cheaper option. But that would still be limited to couples who are amicably divorcing and don't have any complex legal issues to work through.

Some who start with a summary dissolution may end up going through a traditional divorce process anyway, as it remains an "escape hatch" backup option under the law if they end up having a disagreement they can't resolve.

In other countries, you are required to go through mediation first before proceeding to a divorce. In Japan, for example, all couples must try mediation to resolve their cases and disputes, which helps reduce the backlog. Colloquially, it's believed that 90% of the cases settle outside of court before filing in Japan. 

Still, while a lot of couples who are amicably divorcing will be able to take advantage of the new California rules, there will be two big hangups for most of those who don't: the house and the kids. 

As typically the single biggest asset--and one that can't be easily divided--the family home is going to be a hard one for couples to resolve on their own, while decisions about how to take care of the kids usually end up as one of the biggest areas of contention.

In the end, most California couples are still going to have to go through the traditional divorce process, although hopefully they will take advantage of options such as mediation and collaborative divorce that minimize the time spent fighting in court.

That means the high costs of a traditional divorce are still going to need to be addressed, which won't be simple.

The biggest issue is that we don't have enough judges in family court, which means it can take six months just to finish the initial hearings. This can be addressed with more funding for courts. In Los Angeles County, courts managed to cut down the time for initial hearings to conclude to just 60 days. We should work at making that the statewide average.

Another driver of cost is court reporting. Due to a shortage of publicly funded court reporters, many couples are having to pay out of pocket just to have a transcript of their own hearings. These transcripts are important because they help establish what everyone agreed on in court, saving lawyers from having to rehash old arguments.

The State Legislature could help cut those costs by allowing family courts to use recordings, making permanent a practice some judges are now allowing.

In the end, it's the unyielding, unending conflict between some couples that drives their divorce, prolongs the legal fight and clogs the courts.

 If the state truly wants to reduce costs for everyone else, it would create a publicly funded mediation program through which courts could divert such cases. The Los Angeles County Bar Association has a volunteer program, but it depends heavily on the availability of private attorneys.

 In Los Angeles County, we currently have a publicly funded mediation program for child custody disputes, which gets high marks from everyone involved.

In many cases, the mediators are able to either get the parents to come to a resolution or make a detailed recommendation to the judge--both of which help reduce time spent arguing in court, helping reduce the backlog for everyone else.

I'm glad the Legislature realizes that divorce costs are too high for Californians. But if they want to get serious about the problem, they're going to have to commit to resolving some of these bigger issues.