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Why You Won’t Get Even in Divorce Court
Suppose you have decided to divorce your spouse because of some serious transgression. You talk to your friends and they advise you to retain an "aggressive" divorce attorney [some attorneys advertise that way in the Yellow Pages] and "take [the other spouse] for all he/she is worth." You have visions of having your day in court, like the old Perry Mason TV dramas, where the malefactor, under tough cross-examination, abjectly admits his/her crimes while the jury and other onlookers shake their heads in condemnation. Right is vindicated; wrong is recognized for what it is. This is what you foresee in your case. A demonstration for all to see that justice is on your side, followed by imposition of appropriate retribution against the wrongdoer.
It won't happen. In the first place, divorce in California is "no fault" [Family Code §2310]. The wrongdoing of your spouse is, with certain limited exceptions, simply irrelevant and will not be heard. Bad conduct, broken promises, sin and transgression of one spouse or the other are not relevant, and therefore objections will be sustained and the story will not be aired [Family Code §2335].
Second, in divorce court [Family Court] there is no jury. Jury trials, while seldom as dramatic as Perry Mason's, do allow for some histrionics, because the judge may be reluctant to curb the lawyers' attempts to communicate and may permit marginally relevant evidence in a criminal or personal injury case where it is the jury's job to make findings of fact. In divorce court, that is the judge's job. The Family Court judge has a lot of other cases to handle in a limited time, and has heard it all before, and needs to get to the relevant issues in your case: equal division of community property and debt, alimony, child support and how much time each spouse gets with the kids.
The blameworthiness of the other spouse is irrelevant [Family Code §2335] to the equal division of community property and debt [Family Code §2550], and to the factors determining alimony [Family Code §4320]. Child support payments will be determined based on a statewide formula imbedded in a computer program [Family Code §4055], one factor being time with the kids. When it comes to the kids, an angry spouse may indeed sling various kinds of mud at the other in attempting to show the other is a lousy parent. While this may work to some extent, the most likely, and hard to gauge, effect will be damage to the kids themselves. Parents who don't worry just because the kid says "I'm OK," should do some serious reading. [e.g., see "Helping Your Kids Cope with Divorce" by M. Gary Neuman, L.M.H.C., Random House, N.Y.]
A bitter divorce will likely poison your relationship with your spouse. After the marriage is dissolved, you will still have to communicate about the kids and almost certainly, about child timesharing arrangements [Family Code §3100]. If you have spent a year or two, or more, in a campaign to discredit the other spouse and make his/her life miserable, what are the prospects for peaceful and sensible co-parenting? What are the prospects that the kids will have all the parental care and discipline they need? And as to financial considerations, will decisions on division of community assets and support be the result of a careful plan, worked out with a divorce financial professional, advising both spouses, or of horse-trading between adversary lawyers on the eve of trial?
When your friends urge you to "get even" and "have your day in court," ask them for the details of their actual experiences during their divorce and post-divorce. Maybe the adage they really have in mind is "misery loves company."
Joint or sole custody may be awarded based on the best interests of the child and other factors that include 1) the preference of the child, 2) the desire and ability of each parent to allow an open and loving relationship between the child and the other parent, 3) the child's health, safety and welfare, the nature and contact with both parents and 4) the history of alcohol and drug use. Marital misconduct may be considered.
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