“It’s Over” is a series exploring what divorce looks like now — from Instagram announcements to pet-custody disputes.
In the summer of 2018, a stay-at-home mom in Los Angeles, whom we’ll call Julia, and her husband, a talent agent, decided to hire a mediator for their divorce. Their split was acrimonious — she’d caught her husband bringing women back to their home, and in retaliation, she broke a few items in the garage — and both partners wanted to avoid having their marital issues aired out in family court. The stakes only compounded when her husband got a DUI. “If we had been in court, it would have been really embarrassing,” she told me.
After some research, Julia hired a retired judge who had recently left the Los Angeles County Superior Court and said she could provide a “one-stop shop” for their divorce. Soon after formally filing for divorce, the couple submitted a legal document that stated their intention to have a private judge oversee their case. Once the county court signed off, the private judge was given nearly all of the powers of a public judge. The difference was Julia and her husband would pay for the judge directly — a cost of $600 per hour.
Private judging is a nearly 50-year-old system that, to this day, most people know nothing about. It allows anyone to hire a retired judge to conduct a hearing or even a full trial under the auspices of the court without having to actually show face in the court. That mix of convenience and confidentiality has made private judging a favorite tool of divorcing celebrities: Elon Musk, Jennifer Aniston, Charlie Sheen, Sean Penn, Kelly Clarkson, Google co-founder Sergey Brin, Arnold Schwarzenegger, Zooey Deschanel, Chris Pratt, and Kevin Garnett have all relied on private judges to litigate their divorces. The celebrity divorce lawyer Laura Wasser has said she hires private judges for many of her high-profile cases. Most dramatically, Angelina Jolie and Brad Pitt hired a private judge to oversee their divorce until a California court in 2021 agreed to oust him for failing to disclose his business connections to Pitt’s lawyers.
Increasingly, though, it is not just celebrities who have hired private judges but a hodgepodge of wealthy and upper-middle-class Americans: small-business owners, dermatologists, hedge-fund managers, a C-suite executive at a plant-based-meat start-up, and so on. The method may be particularly attractive in the wake of the pandemic as many states suffer from court backlogs. In California, for instance, the clearance rate of marital disputes fell to 79 percent in 2021, down from 100 percent in 2015. For anyone with the money to pay the steep hourly fee — usually upwards of $800 per hour, or a day rate of $8,000 — private judging offers a way to skip the line. In the public-court system, “you can sometimes not get a trial date for two, three years because it’s so delayed,” Kristina Royce, a prominent matrimonial lawyer whose client list includes Schwarzenegger, told me. But if you ask a private judge to hold a trial four months down the line, most likely “it won’t be a problem.”
Private judging is generally a last-ditch option even for the rich. Royce estimated that 95 percent of her divorce cases are settled through mediation alone. “And then if we can’t settle, we’ll switch to using them as a private judicial officer,” she said. People with money often hire private judges to rule on a specific, urgent issue they are facing — for instance, if one ex-spouse is moving away and the former couple needs to renegotiate a child-custody agreement.
Lorna A. Alksne, a mediator and private judge in San Diego, recently heard a case from a divorced couple who couldn’t agree on where to send their child for high school. By the time the couple contacted her, it was July. The school year was a month away, and the parents didn’t have the time to wait for a public judge to hear their case. They hired Alksne to rule on a tight timeline. From a private conference room, the lawyers presented their arguments, teachers and mental-health counselors were questioned as witnesses, and Alksne issued her ruling. “I’ve never had a movie-star case,” Alksne told me. Usually, “they’re just families that need a decision.”
The first modern privately judged trial unfolded in 1976, when a trio of lawyers stumbled across a 19th-century California statute that, they realized, allowed litigants to hire an outside expert to conduct a trial in private. The lawyers presented a petition to L.A. Superior Court, asking to hire a retired judge to oversee their entire legal case. The court signed off on it.
It didn’t take long for celebrities to take advantage of private trials. In 1980, Johnny Carson and NBC hired a private judge to resolve a long-running contract dispute; a year later, an acrimonious divorce involving a wealthy rabbi made headlines when the rabbi’s wife accused the private judge they had hired of bias. With that newfound popularity came early glimmers of backlash. The NAACP, the League of United Latin American Citizens, and other advocacy groups penned letters lambasting the practice as justice for the wealthy. Rose Bird, then the chief justice of the California Supreme Court, complained that private judging “allows those who can afford it to play by different rules.”
Today, despite the criticism, California remains the undisputed hub of private judging, but it is not the only state that permits a privately compensated former judge to oversee a court case. More than half a dozen states (California, Colorado, Texas, Alabama, Minnesota, Indiana, and Florida) explicitly allow litigants to hire private judges to hear cases with the approval of the public court system, and the number is likely higher. One alternative-dispute-resolution firm conducts those private trials in a series of private “resolution centers,” which contain conference rooms that can be organized to mimic a courtroom, scattered across the country. Royce has argued cases in another firm’s mock courtroom and told me it looks roughly the same as any public court — a witness box, a judge’s desk, two lawyer tables.
As Carson did in 1980, some people hire private judges to conduct a trial explicitly to avoid the press. I spoke to one California woman who asked not to be identified because she was involved in a high-profile and expensive divorce from her husband. The woman told me she had initially appeared in public court for her divorce hearings. But after walking out of the courthouse one morning, “we had cameras in our faces,” she told me. “That was the point that we looked into a private judge.” In the end, they held the divorce trial in a conference room.
Privately judged cases are technically open for anyone to attend in California, but in practice, members of the public rarely ever seem to know enough about a private trial in advance. Royce said she’s never had a member of the public try to enter a privately judged hearing. “When I’m downtown, TMZ can come and sit down and sit in the courtroom,” she said, but “they may not know when my hearings are if I go private.”
Confidentiality is a draw even for people, like Julia, whose private lives aren’t necessarily newsworthy. “One of the big benefits to resolving your case via private judging is that you keep your case out of the public eye,” Brent Cashatt, a family-law attorney who currently serves as president of the American Academy of Matrimonial Lawyers, told me. “In most states, divorce cases are private while they are going on,” he said, but after the case is resolved, “they become public.” (This is not the case everywhere, such as in New York.) With private judging, the public can see that rulings were issued, but none of the details of the dispute generally make it into the public record.
Most privately judged cases would not be very interesting to the public anyway. One of the best-known private judges in the country is Jill Robbins, who oversaw the divorce of Pitt and Aniston. Robbins told me that many of the people who hire private judges these days are not famous. Among Robbins’s most frequent types of clients are dentists, doctors, life-insurance executives, lawyers, and a whole slew of business owners. In her 27 years of private practice, Robbins has handled “probably hundreds” of cases involving celebrities, “but I’ve also handled thousands of others,” she said. “This isn’t only for celebrities. It’s for people of all walks of life who just want to be heard and get it done.”
After that initial consultation, Julia, her husband, and the private judge met in a corporate office building in Century City in a suite of conference rooms used for mediations. The judge wheeled in a suitcase full of legal documents plus a whiteboard, which she used to diagram out financial calculations. Everyone was dressed nicely but not too formally; the judge wasn’t wearing a robe.
Over the course of a few in-person sessions, each about six hours, the judge helped them plan for holidays and fill out child-support documents. When Julia’s husband’s DUI came up, the judge talked Julia out of escalating the dispute: She wanted the couple to come to an agreement, not blow up on each other. To Julia, the privacy proved to be a relief. She told me that, during the proceedings, she and her husband “were both messes in our own ways.” But in the conference room, she felt safe to be angry. “I’m glad that I didn’t have to go through that in front of some random judge in the middle of a courtroom,” she said.
In the end, the judge they hired didn’t need to file any motions or conduct a private trial. In 2021, after selling their shared house, Julia and her husband came to an agreement on all of the points. The judge wrote up a formal judgment outlining their divorce and brought it to the L.A. Superior Court, which gave it a stamp of approval. In the past several months, as Julia’s ex-husband stopped being forthcoming with his income statements, one downside of the private route has come into relief: Julia realized that, per their divorce agreement, she can’t take her husband to court without first going through mediation. It was tough to swallow — but even so, she’s still confident hiring a private judge was worth it. Ultimately, the privacy was so meaningful, she told me, that “I don’t regret the way we did it.”