BOX-FORM DIVORCE DECREES: THE ONLY ANSWER TO §20-60.3?

Surely most lawyers' nominee for the ugliest, most expensive and most disastrous thing to come out of the Virginia General Assembly in recent years is Code Section 20-60.3, which makes every support order (including divorce decrees) include a series of statements, findings and notices about child support and about the people involved (and the agencies that may always choose to become involved). Ungrammatical, illogical, anti-legal and counterintuitive, it makes what used to be a minor concluding step in the divorce process a long, nightmarish ordeal that runs up lawyer hours dramatically, and in its goofy wording and frequent alteration serves to guarantee that no lawyer will be able to get it right the first time. At least it guarantees lawyer employment by assuring that no pro se litigant will ever be able to draft a divorce decree -- but the trouble is that most lawyers can't either, at least without a lot of trial and error each time.

However, aware that 20-60.3 comes to us courtesy of everybody's favorite divorce-law experts, the Federal Government and the DSS, most lawyers just suffer under its malign influence as they would under a plague of toads, complaining but not doing anything about it.

But what about the problems that judges have with 20-60.3? While some courts regard themselves as guardians and guarantors of the 20-60.3-compliance of all orders and decrees, others don't. Coincidentally, those which do regard this responsibility as part of their mission and mandate seem to be the same ones that have armies of law clerks to scrutinize court orders. But even at that, one must still wonder whether those armies of law clerks should be spending their time this way.
The judge who has no law clerk, or too small a fraction of one, or who would like to give the law clerk something more productive to do once in a while, will find himself or herself spending ungodly numbers of hours sifting through these boring bureaucratic dossiers looking for social security numbers, etc. Not only is the judge's workday lengthened, but the judge is doing work that is quite different from what we think we are paying judges to do.

And worse yet, some judges apparently regard themselves as duty-bound to see that everything in the 20-60.3 paragraphs of an Order is supported by sworn testimony, or other competent evidence of record. Whether divorces in that county are done by commissioner's hearings, or ore tenus hearings, or depositions, the thought of some circuit judge sifting through a record in which the depositions, etc. stretch back over several years (with each year bringing its new crop of additional 20-60.3 requirements) to find the sworn testimony as to the social security numbers, the insurance provider ID, etc., is nightmarish enough for most people.

One judge who worries about the problems brought on by 20-60.3 is Judge Shore Robertson of the Twentieth Circuit. He has seen the vast increase in judges' working hours, does feel a need to assure the compliance in all particulars of every order and decree, and has even wondered about the question of evidentiary support for all the multitudinous declarations. Judge Robertson observes that hardly anybody seems to be able to get the provisions right, and that no accepted formula for compliance has evolved, since the crazy wording of the statute so militates against it. He observes that even experienced lawyers just don't seem to be able to read their supplements, change their word processors, and keep up with all the annual changes, so that decree after decree, consent order after consent order, modification orders, pendente lite orders, etc., all keep getting bounced back for re-submission, with all that that entails.

Unlike the rest of us, however, Judge Robertson is proposing a solution. That solution is the kind of thing all of us have come to know and love from juvenile court: California-style printed forms.
With printed form orders, no one would have to struggle with re-penning the repulsive and illogical prose of the warnings and declarations. No one would get anything wrong or leave anything out in these boilerplate paragraphs. It would just be printed there. When it comes to the required-information portions, check-boxes and blank lines would show the way. Thus no one would have a chance to get creative or forgetful, and the reviewing clerks (or monkeys, or electronic scanners or whatever they use) could zip through the form and spot omissions in an instant.
And as for the sworn evidentiary support, that problem would be solved too, because parties could be required to swear the component information somehow. Yes, you would have a thing that is part affidavit and part court order but they probably do that Somewhere in This Great Land of Ours anyway.

A very traditional Virginia country judge, Judge Robertson is not any more fond of printed forms than the rest of us. Nor would he be surprised to learn that the idea of introducing printed forms may be about as popular as introducing Ebola virus in some of the tradition-respecting regions of the Commonwealth. Judges as well as lawyers like court decrees that look like they were written by the human hand (or at least as though a human hand got involved somewhere in the process), and in the English language. Of course lawyers like to hand-craft decrees and other orders that show some human comprehension of the differing facts of the individual case, make logical and grammatical sense, remind us that our ancestors were articulate if not eloquent people, and make lawyers feel they went to school to learn law rather than computer technology. However, to Judge Robertson they can't have that and have 20-60.3 too. The federally-mandated statute has simply put an end to the possibility of individualized craft in that part of the profession, and printed form orders are the only thing that will save us from its voracious appetite for stultification. We have to face the fact -- enamored of it or not -- that if this is a bad idea, it is a bad idea whose time has come.

Whether the General Assembly, the Boyd-Graves Conference or the Virginia Supreme Court Secretariat takes on the task, box-form orders in domestic cases may be just around the corner. Decrees written in English may soon be a thing of the past and lawyers will ask themselves why and where we in Virginia got the idea that lawyers are any good at writing judges' orders for them anyway. Compared to the situation we have now, it may at least be a solution we can live with.

MORE ON BOX-AND-BLANK FORM ORDERS

By Richard E. Crouch
VSB Fam. Law News VOLUME 15, NUMBER 3, p. 43, FALL, 1995

After reviewing and considering the Summer Issue's discussion (page 7) of possible inauguration of mandatory printed-form orders in support and custody cases, Alexandria practitioner Q. Russell Hatchl also considered the difficulties that arise when filling out printed forms on typewriters. His response is the suggestion that any such new rules or legislation allow for computer-generated versions of the form (as already exist for the Fairfax model support order discussed in Richard Byrd's article, above). This procedure should reduce the risk of human error in adding the client-specific information, make the correction of mistakes look better, and help prevent typographical mistakes in the boilerplate parts which come pre-printed.