Expecting to Get Justice by Going to Court for Your Divorce
Many people naively believe that, if they can just get the judge to listen to what their ex did, the judge will make things OK. Well, it doesn’t work that way. Why not?
In some jurisdictions, judges are appointed as part of a political process and are therefore not answerable to the electorate, other than possibly having to run in infrequent "retention elections." Their biases, values, and belief systems are often more in sync with the political cronies who control the system than the people who appear before them. Even judges who are elected come with no guarantee of open-mindedness. In fact, many judges who routinely hear divorce cases become jaded and callous, adopting the attitude that if two grown people cannot resolve their differences without resorting to the courts, then they deserve whatever result the system decides to impose.
Because there are two sides to every story, judges often find it impossible to figure out who is right or who is telling the truth in the short time they have to deliberate. Instead of trying to figure out the truth themselves, some judges look for a way out. Some will hand the matter off to a social worker or psychologist to "evaluate" often at great expense to the divorcing spouses.
Just as often, a judge will apply direct pressure to the lawyers and litigants to work it out among themselves. Sometimes a judge politely asks the parties involved to work it out themselves. It is not uncommon, though, for divorce judges to lecture, belittle, shame, threaten, and punish litigants in an effort to get them to work it out or to get one party to give in to the other. Some judges are purposely irrational, unpredictable, inconsistent, rude, or insensitive, perhaps in the hope that the parties will be sufficiently cowed to agree on a resolution rather than taking the risk of letting the judge decide for them.
Take the case of Roslyn Smith, reported in the Maryland Special Joint Committee on Gender Bias in the Courts report issued in 1989. Ms. Smith sought help from the court system after her husband threatened to kill her with his gun. She told the committee:
Or take the case of Kathleen Murphy, a bank teller who lost custody of her five-year-old son to her former husband, a lumber company executive. According to newspaper reports, the judge awarded her ex-husband exclusive use of the family house and ordered her to pay him $95 per month in child support, even though at the time she was only earning $7 per hour. Ms. Murphy told the Baltimore Sun, "After you put your faith in the judicial system for your whole life and something like this happens to you, you go home and suffer in silence."
Or take the case of Vivian Archie. Although the Tennessee state judge handling her custody case was convicted of sexually assaulting her, his conviction was later overturned. A federal judge who disagreed with this result explained why:
People going through divorce often see their own position as the "right" one and cannot believe a judge won’t see it the same way. But a trial is not about the truth; it is the telling of a story. What the judge hears will depend on how good a storyteller your lawyer is and how convincing you and your witnesses are. If you are stiff and wooden or overly emotional and hysterical, the judge may not believe you or may sympathize with your spouse. The judge may have gone through a messy divorce herself, and you may remind her of her ex-husband. The judge could have a very negative reaction to you for some reason, and you may never know why. Although judges are supposed to be trained to put aside personal prejudices and biases, is this really possible? You must realize that whenever you turn a decision over to a judge, as opposed to reaching agreement with your spouse, you are both handing over control to someone else, someone about whom you know very little and over whom you can exert only as much influence as your lawyer can muster.
US. v. Lanier, 73 E 3d 1380 (1996). The U.S. Supreme Court also disagreed with the overturning of the judge’s conviction and sent the case back for reconsideration.
Your lawyer may try to put certain things into evidence before the judge that are excluded for technical reasons. For example, things other people have told you may be excluded because they are hearsay. Some things may be ruled inadmissible because the judge finds them to be irrelevant. And certain people may not be willing to get up on the witness stand and testify against your spouse under oath because they are afraid of repercussions. What actually comes out at a trial may not bear any resemblance to the way things really are.
Let’s suppose, though, that your lawyer does a good job, and all the evidence you wanted to put before the judge for consideration is admitted. You succeed in proving that your spouse, a manic-depressive taking lithium, has a house full of guns and a stockpile of food she plans to eat while living in the underground bomb shelter she insisted on building for use when the roving bands of social misfits take over the country. It may seem crystal clear to you, and everyone you know, that your wife is a nut, but don’t be so sure the judge will necessarily come to the same conclusion. You may believe your gun-toting, manic-depressive wife is not a competent parent, but the judge may believe that everyone has a right to bear arms and that, as long as the manic-depressive is taking her medication, she can parent effectively. The judge may view the bomb shelter and food stockpile as legitimate precautions in a world where anything can happen. There are two ways to view every story.
Because judges are so unpredictable, if your legal position is less than clear-cut, it might make sense for you to compromise with your spouse and settle the case. You will not only save on fees but also avoid the risk of getting a bad ruling from the judge.
Even if you win your case and are totally vindicated at the trial level, your spouse can always appeal, thus creating more delay and expense, and possibly win the appeal. For this reason, even if you know you are right, it sometimes makes sense to give up a little and settle, so you can have the fight over sooner, more cheaply, and on terms you can live with.
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KEEP AN EYE ON COSTS – The cost of a litigated divorce – one that goes to court – can be eye popping, and divorce, it should be remembered, makes more people poor than it makes any rich. When a divorce seems headed for trial, most lawyers prefer to work with a retainer agreement, which is the upfront payment. Typically, the total number of hours multiplied by the hourly rate is the lawyer’s fee.
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