Though they play out in a more public arena than Superior Court, celebrity divorces are not so different than “normal” California divorces. The main difference in a celebrity divorce is that most often the parties entered into a prenuptial agreement before walking down the aisle, and any unresolved issues are argued before a private judge, rather than in a public court.

Most parties to a marriage in California now do not have a prenuptial agreement (“pre-nup”) in place, which leads to all sorts of problems down the road. We have posted separately what would be the likely outcome of a Donald Trump v. Melania Trump divorce, so we won’t go in to too much detail about the benefits of a pre-nup here. Attorneys rarely enjoy speculating on the outcomes of any case, but something about Melania and Donald’s relationship – so publicly cold, so publicly humiliating for Melania – makes it seem like a divorce is imminent. Las Vegas is not yet placing odds on a break-up in 2021 who once put the odds at 175 to 250. Betting on this divorce has been usurped by interest in Kim and Kanye’s seemingly imminent divorce so it is unclear whether the odds have gone up or down.

The Trumps could not get a divorce in California because neither party is a resident of this state for the statutorily prescribed amount of time (6 months prior to filing a Petition for Marital Dissolution). But Kanye and Kim could claim residency in California, so if they did proceed to divorce, what would likely happen? And what would we ever know?

It appears that Kim and Kanye also have a prenuptial agreement, though we may never know for sure. Even in celebrity divorces and cases where both parties have signed a pre-nup, one party still has to file a Petition for Marital Dissolution with the Superior Court that would have jurisdiction over the case. This filing is public, and this is often how “we the people” find out about a pending divorce. Any resolution or settlement reached in the divorce will likely remain confidential, with only a very skeletal summary of what issues were resolved being filed with the Superior Court. Often, all the Judgment will say is that a Judgment has been entered and the terms are subject to a confidential settlement agreement or decision. This Judgment will likely only see the light of day if one party later tries to enforce it due to the behavior of the other party.

After the filing of this Petition, though, the celebrity divorce is almost always quickly reassigned to a private judge. This is what is meant by a “private court case”.  Private judges, particularly in Los Angeles, are often very experienced retired judges who have more experience than probably any judges anywhere divorcing celebrity couples. The case will typically remain in private judging until a Judgment is entered, though post-judgment issues, like modification of child custody or support, may continue to be heard in front of this private judge for years afterward. Private judges are not only for celebrities; we often use private judging for exceptionally complicated cases, and though it can be costly up front, it can often be a more economical approach especially if your case is likely to return to court often.

Private judges operate just like a Superior Court judge – they set hearings, hear witness testimony, make evidentiary rulings and make legally binding decisions. Often, child custody issues are the only issues not resolved by a pre-nup because pre-nups can’t establish custody for the children if doing so would not be in their best interests. This is why we most often hear of private judges hearing custody cases, and related child support or spousal support cases, even when the parties have a pre-nup.

Private judging has numerous advantages over proceeding with a celebrity divorce in a public court, not the least of which is maintaining the privacy of the parties as they work through their issues. Unlike in public court, if the parties have to appear in person before a private judge, anyone who may be in the office will be asked to sign a confidentiality agreement to prevent disclosing that the celebrity couple was even in the office, much less what was discussed.

Another advantage of private judging is the ability to move matters forward much more quickly and thoroughly than you would in Superior Court. The Superior Court system is often overloaded, and it is not uncommon for your attorney to have to sit and wait for hours for your matter to be called, only to find that the matter needs to be continued to yet another date – often months later. COVID 19 has caused turmoil in the courts, which has only been compounded by drastic funding cuts, which means that cases are being set and continued out farther than ever. Private judging allows a case to move forward on the parties’ schedule rather than the overloaded Superior Court’s calendar. Matters typically start on time, eliminating the hours of lost attorney time just waiting for a matter to be called. Also, the fact that the matter can be one of a few cases before the judge, rather than one of 250 cases, means you get more in depth, focused attention to the details of your case, which can also save money and help you get a better result.

There are disadvantages to private judging: it is still expensive, especially up front. Typical retainers are $10,000 to start and go up from there. Also, the private judges and the attorneys who tend to use private judges (which still tend to be high asset, high profile cases) often know each other and have tried cases against each other before. Also, attorneys may have appeared before the particular private judge often enough to have developed a relationship that may at the very least appear biased to one or both parties. This relationship development, and the judges’ alleged failure to disclose the relationship he had with Brad Pitt’s attorney, was behind Angelina Jolie’s recent request for the private judge on her case to recuse himself. By “relationship” it is important to note that we are not suggesting anything other than a prior professional relationship where one attorney had many other cases adjudicated by this particular private judge. This gives the appearance that the judge may have a bias toward a particular attorney. For this reason, judges have an obligation to disclose any prior cases they have had with the attorneys on both sides.