The Secret Lives of Retired Judges

Why Brad and Jennifer hired one to handle their divorce.

Divorce is the Pitts. Click image to expand.
Divorce is the Pitts

Brad Pitt and Jennifer Aniston took one more step toward divorce last Friday, when a retired judge in Los Angeles signed an official “judgment of dissolution” for their marriage. Just how much authority does a retired judge have?

Quite a bit, if you’re in California. Judges who leave the bench in any state can go into practice as private mediators or arbitrators. In the Golden State, they can also hire themselves out as “private judges.” If both parties to a civil case agree to hire a private judge, they can do so with the prior permission of the county court. A private judge then takes an oath of office and serves exactly as if he were on the bench for the duration of that case. (Not all private judges are retired judges. Some are lawyers who have never served on the bench.)

An unhappy couple might hire a private judge to bypass the delays that come with using the state court system. They might also choose to pay for their judge to avoid unwanted publicity. Private trials are often held as “settlement conferences,” the details of which do not become part of the public record.

Rules vary from state to state, but in most jurisdictions other than California retired judges have very limited authority. It’s not uncommon for retired judges to perform marriages, but they generally can’t perform any other official duties, unless they’re brought back to the bench as “visiting” or “senior” judges.

In most states, a judge who steps down can certify in writing that he or she is willing to return to work on a temporary basis as needed. A retiree can either be recalled to hear a particular case, or to serve a brief, defined term on a given court. They often receive a per diem salary based on the rate for sitting judges, with adjustments made to reflect the value of their concurrent pension benefits. (The per diem tends to be around $200 or $300.)

The state might recall a retired judge to replace someone who is sick or to help out with a particularly heavy caseload. In some cases, multiple retired judges get recalled all at once: In 2003, all eight members of Alabama’s Supreme Court disqualified themselves from hearing the case of “10 Commandments” Judge Roy Moore, their former colleague. As a result, retired judges were selected by lottery to sit in their place.

In the federal system, where judges are appointed to life terms, retirement works a bit differently. According to the “Rule of 80,” a judge over the age of 65 can step down at full salary, provided that the sum of his age and years of service is at least 80. He can also take “senior” status, which means he’ll stay on with a reduced work schedule. A senior judge must hear at least a quarter the number of cases of a full-time judge.

Next question?

Explainer thanks Lee Borden of the Alabama Family Law Center, Dick Carelli of the Administrative Office of the U.S. Courts, Retired Judge Murry Cohen of the First Court of Appeals in Texas, Cynthia Gray of the American Judicature Society, Peggy Rogers of the National Center for State Courts, Sue Talia of the Private Family Law Court, and reader James Crook for asking the question.