"I want my day in court!" We hear this over and over from clients, usually those who have been privately wronged and want to be publicly vindicated in a court of law, with a judge declaring them right and their spouse wrong. In this fantasy (because that's what it really is), they are awarded everything they think they deserve in the divorce, and their spouse is suitably punished for their misdeeds.
It's natural, especially when your spouse has hurt you, to envision and desire an outcome like this. The problem is, it almost never happens, and when a judge hands down a decree that does not reflect what you believe to be fair, you feel triply injured: first by your spouse, then by the perceived injustice of the outcome, and third, by the realization of the legal fees you had to pay to go through a trial, only to get a result you don't like.
Learn why your "day in court" is unlikely to completely yield the result you want, and how you may be able to get what you need with less stress and expense—and without a judge making the important decisions that affect your life.
You've heard there are two sides to every story, but in a litigated divorce, there are three sides: yours, your spouse's, and the judge's. Judges take the requirements of their position very seriously and strive to be impartial, but they are human beings like the rest of us, and like all of us, their decisions are informed by their life experiences and unconscious biases.
One example: we've been in a courtroom with a very traditional, religious older male judge. The CHIPS case he was hearing involved injury to a baby, and it was obvious to most people in the courtroom that the mother was at fault. But the judge simply couldn't believe a mother would hurt a little baby. His biases would not allow him to interpret the evidence in a way that would conflict with his beliefs about women and motherhood.
A judge who has been through a bitter divorce might be a little tougher than necessary on litigants of the opposite sex. A judge who had an absent or abusive father might see mothers as the better and more nurturing parent. It's rarely intentional and it's almost never conscious. Typically, such bias isn't provable; judges have a great deal of discretion, and unless a ruling that stems from a bias is egregious, there's little anyone can do about it.
That means, practically speaking, that you may get stuck with a less-than-ideal result with little recourse. For example, temporary orders are not appealable and remain in place until the final resolution of a case. So if the judge who heard your temporary custody motion tends to believe that dads get a raw deal in divorce or that it's better for young children to live with mom, their worldview shapes your reality.
What can you do? After all, isn't the judge in charge of the case? Well, yes and no. The judge oversees your case and will make a ruling if you and your spouse can't agree. And while judges try very hard to be fair, the reality is that no judge can know your family and your needs as well as you and your spouse. So if you and your spouse can agree on a settlement, the judge will very likely approve whatever you decide together.
You may be thinking that you'd rather take your chances with a judge's potential bias than with your spouse's very real animosity toward you! But that's where your divorce attorneys come in. If you and your spouse are working with ethical attorneys, they can help guide you through the process of identifying your needs and options and working toward a settlement customized for your family's needs. This may involve mediation, or simply sitting down around a table and talking issues out with your attorneys. The good news is that a negotiated settlement is not only better designed for your needs, but often less expensive than a divorce trial because you are not paying attorney fees for one or more days in court plus the hours upon hours of preparation your attorney will need before trial.
The bottom line is, no matter how contentious you imagine your divorce will be, don't automatically assume that having your "day in court" will make everything okay. Instead, share your vision for your life after divorce with your attorney, and trust her or him to help you identify the most likely path to get there. That may turn out to mean litigation after all. If it does, you will have the satisfaction of knowing you made an informed decision to go to trial, not an impulsive choice you might later regret.
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