Muse v Muse, 2009-NMCA-003 was a bitterly fought New Mexico divorce that took over seven years in and out of court to resolve. The issues of the case were financially complex and aggravated by a husband intent on a scorched earth policy. His willingness to abuse the system to deny his wife a settlement led the court to exasperatedly state that the husband was “intent on squandering the marital estate on unnecessary fees and expenses […] through […] vexatious motions and complaints”.  Id. ¶ 17

Although Muse was a particularly egregious case, it is a prime example of a dispute guaranteed to disrupt the smooth functioning of the court system. Our family courts are simply not equipped to deal with lengthy, contentious or complicated family law disputes. On the one hand, these cases tax an already overburdened court. On the other, complex cases are rarely able to garner the time and attention required for an adequate understanding and ruling on the issues.

One solution is the appointment of a Special Master. As provided in NMRA 1978, Rule 1-053, a Special Master can be engaged to report on specific issues of a case or to take the lead in a quasi-judicial role, hearing all evidence and rendering a decision on behalf of a judge. Special Masters are typically highly experienced lawyers and can be chosen for a skill set that tracks closely to what is required by a specific case: A case involving extensive financial reviews and disclosure requires a Special Master with significant financial acumen; a contentious custody dispute might warrant a Guardian Ad Litem Special Master with training or experience in domestic violence, substance dependency or mental impairment. In Muse, a Special Master was first appointed to report on asset values, debts, tax consequences and liabilities.  A second appointment on the same case several years later was made for a Special Master to review and resolve issues concerning the liquidation of the family businesses.

In general, Special Masters handle issues that would be burdensome for the court or that could not reasonably be handled by a judge encumbered by courtroom commitments. Judges appoint Special Masters to resolve disputes quickly, streamline discovery or to handle protracted or difficult settlement negotiations. In these capacities, a Special Masters is an adjunct of the judge, facilitating the functioning of the court system and lightening the judicial load. This role was the focus of an article in the June issue of ABA Journal, in which New Mexico Supreme Court Justice David Thompson describes the advantages of Special Master to the courts.

Special Masters can also be requested by the attorneys on a case. This often occurs when the expertise required to quickly grasp the complicated issues of a particular case are more available outside the court than inside, or for recurring discovery issues, when waiting the six-plus weeks typically required to get time in front of a judge is incompatible with a desired speedy case resolution.

In contentious cases when even scheduling can be problematic, the flexibility offered by a Special Master can alleviate some of the difficulty of moving the case forward. A Special Master can schedule meetings at convenient times, consistent with the calendars of parties and litigants and in more casual and comfortable venues. Lastly, many divorce litigants would prefer the details of their private lives to remain private and prefer the discretion of a meeting with Special Master over a hearing in open court.

The findings of a Special Master are issued as an order or a recommendation and, unless found to be “clearly erroneous” on appeal, carry the full weight of a judicial decision.