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Divorce Truths - A Common Sense Approach

When I started practicing domestic law in 1985, I was surprised at what actually determined the outcome of a divorce trial. A good fact pattern, the best legal theory, and the most competent attorney did not always win in trial.

A case could be lost because of the arrogance of a client. A single statement that appeared false would destroy a client's credibility and taint their entire testimony. A spouse who testified as confident and reasonable in court would wipe away all the months of outrageous behavior they displayed throughout the divorce. Likewise, a client who was emotional, bitter or resentful while testifying on the stand would incur the disapproval of the judge. No amount of good deeds displayed throughout the divorce would rescue them. Sometimes spouses that should have lost, would win. Sometimes spouses that should have won would lose. What was happening?

There are seemingly small but profound occurrences which influence the judge's opinion of the parties and their testimony during their court appearances. Attorneys aren't magicians. The final decision always rests with the judge in contested cases. Often times, it's basic- it's who and what the judge believes. Your body language, your choice of words, and your voice inflection all comprise the total perception that influences the trier of fact. Perception is reality, at least in the courtroom. Verbal and non-verbal communication between the witness and the judge can contribute to who wins and who loses. Unfortunately, it occurs in a short period of time even though the result can last a lifetime by an unfavorable ruling.

Like it or not, fair or unfair, that's the real world of having a third party determine the outcome of your life. What you believe to be the right thing does not always happen. When you step into a courtroom, you are rolling the dice because there are so many factors that you can't control. Avoid a trial if at all possible.

It is my objective to make you aware of why certain things happen, and why others do not. By being more aware of your participation, you should experience less frustration. You want to maximize your chance for a favorable ruling. You need to acknowledge your behaviors that signal problems. In approaching your divorce, you need to understand that what happens in the courtroom is as much psychology as law. Your attorney will furnish the law, but the psychology comes from human behavior under stress, lots of stress. You are trying to get what you want through other people and usually contrary to their wishes. You are trying to convince a judge that your argument is right, and your spouse is wrong. You and your attorney will be engaged in persuasion elevated to an art form.

This is not a legal thesis and does not contain statutory or case law. This is not an attempt to teach you law. This is about the practical application of the applicable law to the real world of negotiation and the courtroom. It's not how to trick or destroy your spouse. It's about how to get through your divorce, hopefully by getting most of what you want without investing all of your life's savings. It's taking small negotiations and building on larger issues to eliminate surprises later on. You need to be more objective about the process as you go through it. You need to recognize what you can control during your divorce and maximize it. For the issues or individuals you cannot control, you need to evaluate how realistic your approach is and make calculated decisions.

As you read through this, hopefully you will become better informed to navigate the difficult times in your divorce. You want to be as effective as possible in shaping the outcome. It is a cruel irony that you must make some of the most difficult decisions of your life at a time when you are emotionally the least prepared to do so. Often times, you may be your own worst enemy. Don't just pay your money, and blindly enter into your divorce. Divorce requires thought, planning and direction. Some you will furnish; most your attorney will furnish. There are things that happen simply as a result of chance. You want to leave as little to chance as possible. A trial is a live presentation. The reality is anytime there are others acting in concert with your effort, it affects the outcome. Like any presentation, the better prepared and credible everyone is, the more favorable the result. Don't be blinded by the pressure of the divorce. Think about what needs to happen and work with your attorney to make that happen. Don't "wake up" after it's all over and second guess everything.


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