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Wednesday, February 8, 2012

THE WAY IT IS IN FAMILY COURT-USUALLY

Copyright © Jonathan D. Gordon, Esq. 2012

         People who are unfamiliar with the way that the system works often have unrealistic expectations.   To help orient clients to their journey in family court, I have prepared a simple but realistic 15 point guide, in blunt & realistic terms, to have in one's mind when  embarking on a divorce or other family court action. Not in any particular order:

    1.  THE SYSTEM DOES NOT ALWAYS WORK FAIRLY. IT IS VERY IMPERFECT AND SLOW:      
    (So don't be shocked when this happens.  There may or may not be recourse (ie. filing an Appeal), but usually, the parties do not walk out of Court euphoric with a "home run".  Everything will take much longer than you expect or wish for.  There will be unanticipated postponements by the Court, judges and attorneys have illnesses and personal emergencies, and there are always snow days when your case will be bumped to the next month or 6 weeks later). 

    2.  THE JUDGE WILL NOT NECESSARILY BE ON YOUR SIDE OR FAVOR YOU, EVEN IF YOU ARE THE “GOOD GUY” IN YOUR OWN EYES:
    (The Judge is supposed to be impartial and fair to both parties, even if you consider the other party to be totally evil and deserving of harsh treatment.  The Judge isn't your friend, or your adversary's friend.  The Judge is there to make sure that you both get a fair and just result (e.g. compromise) and that the children, if any, are protected and having their best interests met.)
    3.  THE JUDGE WILL NOT BELIEVE ANYTHING ANYONE SAYS (EVEN YOU) WITHOUT PROOF:
         (In Court, Rules of Evidence and the Rules of Court (i.e. your state's code of Civil Procedure) have to be followed and enforced by the Judge.  Allegations without credibility or adequate proof are not much more than noise to the Judge and baseless allegations may backfire if the Judge starts to get annoyed at you for making too many allegations that go nowhere.  Be prepared to prove your allegations with witnesses, documents, etc.)

    4.  THE COURT DOES NOT CARE HOW MUCH YOU SUFFER(ED), AND YOU WILL NOT GET MORE MONEY OR A BETTER OUTCOME BECAUSE OF IT. IT IS AN UNFAIR REALITY: 

         (Unless you can show actual damages such as physical injury in the case of domestic violence, or serious dissipation of marital assets, or some truly horribly shocking behavior that would shock any reasonable person, then you will most likely not recover anything for your suffering.  Your emotional journey, the betrayals you suffered, and the loss of your relationship will likely not be compensated by the Court.)

    5.  THE COURT DOES NOT CARE HOW MANY PEOPLE YOUR SPOUSE SLEPT WITH:
         (Since virtually nothing the Judge hears will be shocking to him/her, it is highly unlikely that the Court will favor you just because your spouse/partner was sleeping around some of the time or on a regular basis, as long as the children were not exposed to anything inappropriate such as sleepovers with lovers when the children are there too.  Multiple infidelities are not something you will be compensated for.)
    6.  THE COURT DOES NOT CARE IF YOUR SPOUSE IS BISEXUAL OR GAY: 

         (Should be self-explanatory. At least this is the case in New Jersey where I practice.  In this day and age, the Courts are prevented from discriminating based on gender or sexual preference.  So if your partner or spouse left you for a same-sex partner, it will not be a factor in your divorce unless there are other reasons why that "other" person would not be good to have contact with your child.  But that is already getting into other issues such as substance abuse or psychiatric.  Sexual preference, in and of itself, will not be a factor unless there is some other harm to the child that can be proven.)
    7.  THE COURT IS USUALLY NOT INTERESTED IN PUNISHING YOUR SPOUSE/EX, ETC. REGARDLESS OF HOW UPSET YOU ARE AT THE OTHER PARTY.   THE COURT DOES NOT--AND WILL NOT--SHARE YOUR OUTRAGE AT YOUR SPOUSE, EXCEPT IN RARE OCCASIONS SUCH AS IN CHILD ABUSE OR DOMESTIC VIOLENCE. YOUR CASE PROBABLY IS NOT RARE. “IF ONLY THE JUDGE COULD HEAR ME OUT”  IS NOT REALISTIC AND DOES NOT HELP YOU AT ALL.  IT COULD, HOWEVER, DRIVE YOU TO GO TO TRIAL, USUALLY A BAD IDEA IF SETTLEMENT IS POSSIBLE.
         (As was mentioned above, it doesn't matter much how you perceive your spouse, partner or ex.  What matters is what the Court decides is fair and just, and what is in the best interests of the children, if any.  Your personal pain and anguish, years of suffering and misery with a no-good, rotten spouse is not factored into the Judge's decisions, even if you really did suffer living with this person.  The Court is more interested in the parties moving forward with their lives rather than re-visiting what happened in the past.  If you insist on the Judge hearing your story, you will end up in a trial which costs a ton of money, and you will not be allowed to just tell your story the way you wish to.  You will be limited by the Rules of Court and the Rules of Evidence, and you will be cross examined on anything you say.  Not a very pleasant experience to go through, for dubious results.)

    8.  YOUR LEGAL BILLS WILL BE HIGHER THAN YOU EXPECTED: 
         (Much of this may be driven by your adversary/spouse, etc., as well as your own insistence on litigation, and the amount of time you spend on the phone with your lawyers. An attorney cannot always predict what the other side will do, but usually your lawyers have to respond to it in some way and that costs you more money.  Your attorneys have to be paid for the time working on your case, even if your spouse/ex initiated the litigation or caused the problem.  If you are fighting for custody or relocation out of state with the child(ren), for example, it will be extremely expensive. (More on that later in another post.)There are no quick solutions and you won't necessarily collect attorneys' fees at the end of the case from your adversary, either.  Judges are not quick to award attorneys' fees unless there is clearly bad faith or a willful violation of a previous agreement or order.)  

    9.  YOU WILL GET LESS MONEY (OR PAY MORE) AT SETTLEMENT THAN YOU WANTED: 

         (No matter what you think you deserve, the end settlement or findings of the Court after trial will represent a compromise and most likely will not be what you had hoped for.  Unless the Judge made a significant error of law, an appeal will most likely be unsuccessful since in Family Court, the Appellate courts usually give great deference to the Family Court Judge's decisions related to the factual disputes in a case.  They allow significant discretion to the Judges regarding their decisions, so long as the Judges don't abuse their discretion and go beyond recognized standards or case law.)

    10.  SINCE YOU MAY HAVE TO PAY MORE (RECEIVE LESS) ALIMONY OR CHILD SUPPORT THAN YOU WANTED TO, YOU WILL PERCEIVE YOUR PARTNER,  SPOUSE OR EX TO BE HAPPIER THAN THEY TRULY ARE. THEY WILL TRY TO PLAY “HEAD GAMES” WITH YOU, SNEER AT YOU AS YOU LEAVE COURT AND PUT ON A HAPPY FACE JUST TO FREAK YOU OUT:
         (This also should be self-explanatory.  But you cannot expect the person who made your life miserable for the past few years to act differently now.  If the other party wants to emotionally hurt you, they can continue to push your buttons for years to come, if you allow yourself to be upset by their attitude, demeanor or the show that he/she puts on in front of you just to make you feel like you "lost" and they "won".  It sounds dysfunctional because it is.  Try to get rid of the buttons that the other person pushes, by ignoring this behavior and thinking your own thoughts, not what they want you to think or feel.  Try to be happy that you are not living with this person any more.)

    11.  YOUR EXPECTATIONS WILL ALWAYS BE HIGHER THAN THE (UNFAIR) REALITY THAT YOU WILL EXPERIENCE:
         (This is related to the previous sections.  Namely, you don't know what this Judge will think or feel about your case.  You don't necessarily know what issues, facts or proofs are going to yield positive results for you, without legal advice.  Not everyone listens to what their attorney counsels them, perhaps because in some cases, it goes against what the client has their heart set on.  The breakup of your relationship is tragic and painful.  You cannot escape that fact.  Expecting to punish your spouse, get adequately compensated for your pain and suffering, maintaining your previous lifestyle, as well as your expectations of how much time the children will spend with the other parent, are just expectations and wishes at this point.  You can talk with your attorney about your wish list, and some of it, or all of it may be appropriate and reasonable.  It is just a wise course of action not to get your hopes up too high to avoid devastating disappointment later if your wishes do not come true.  Your success in this litigation is highly fact-dependent and depending on your proofs and credibility, you may have a more or less easy or difficult time getting the great result you want, depending on the circumstances of your case.) 

    12.  COURTS USUALLY TRY TO GIVE EACH PARTY SOMETHING THEY WANT, AND THEY TRY TO APPEAR OBJECTIVE AND FAIR. BUT DON’T EXPECT FAIRNESS OR HOME RUNS. SOMETIMES YOU'LL THINK THE JUDGE SIMPLY DOES NOT “GET IT”.
         (It is unusual for a Judge to "not get it" with regard to thoroughly understanding the complex issues of your case, along with the applicable Law.  Judges in almost all cases are hard-working, sincere individuals who read all of the papers before them (sometimes late at night) and who will do their best to do the right thing for you and for your children.  There are occasional exceptions, however, in some courts and on some days.  Even a Judge has an occasional bad day when they may be less patient or Solomon-like.  They are human too.  Most likely, however, your perception that the Judge doesn't get it may stem from your unrealistically high expectations, or possibly because the other side also had a compelling argument--maybe as compelling as yours, to your Judge.  The decision you get may not seem fair to you, but may be seen as fair by most other people.  You always can appeal a clearly wrong decision, but appeals can be very costly and time consuming.  Judges' decisions are usually affirmed on appeal.   You should discuss all of the issues and options with your attorney before coming to any conclusions about what happened in Court.)
    13.  YOUR LAWYER DOES NOT HAVE MAGICAL POWERS AND MUST FOLLOW THE COURT RULES, THE LAW, AND THE COURT’S DIRECTIVES EVEN IF YOUR LAWYER  DOESN'T  LIKE IT OR BELIEVES THE JUDGE IS WRONG.  FRIENDS WILL TELL YOU WHAT YOUR LAWYER SHOULD BE DOING (OR SHOULD HAVE DONE) BUT THEY DON’T REALLY KNOW YOUR CASE, NOR DO THEY KNOW THE LAW OR ALL THE FACTS SURROUNDING THE ISSUES. 

     (Don’t let well-intentioned supporters/family get you unnecessarily upset. Your support group clearly means well but may not be acting in your best interests by inciting you to feel worse than you have to feel, during very difficult circumstancesThey may have expectations that are unrealistically high because they are in pain that you are in pain.  If you question things to your attorney, you should receive a clear answer that explains things to your satisfaction.  Understanding why the result occurred the way it did, is different from agreeing with or liking the result.)

    14.  YOUR LAWYER WILL MOST LIKELY INTERACT WITH THE ADVERSARY LAWYER CONGENIALLY. YOUR POSSIBLE (INTENSE) DISLIKE OF OTHER ATTORNEY WON'T NECESSARILY BE SHARED BY YOUR ATTORNEY.  


    (Regardless of the congeniality, your attorney should do what is necessary to zealously advocate on your behalf.  If you are uncomfortable with or confused by the interactions you see, discuss it with your attorney.  There should be no difference in your lawyer's advocacy for you regardless of who the adversary attorney is.  Lawyers try not to take the adversary attorney's aggressive or unpleasant words personally.  For you, it is personal, but the lawyers regularly appear in court and have numerous interactions with the same attorneys and judges, day after day, year after year.  This should not affect the outcome of your case.  The opponent attorney would be acting the same on your behalf if he/she was working for you, and vice versa.)

    15.  IT IS BETTER TO SETTLE YOUR ISSUES THAN TO TAKE IT TO TRIAL.

         (If you take the above paragraphs to heart, you can readily see why it is better to settle than to take the chance of a trial.  Almost all divorce matters settle before trial. Most of the time, if a trial does occur (less than 5% of the time), the Judge will not do much differently than what could have been agreed-upon by consent of the parties months earlier.   The cost of a trial is huge.  Preparation of documents, depositions of potential witnesses, time spent in court, all costs a lot of money: tens of thousands of dollars.  Even the cost of months of bickering and arguing before settlement costs a lot of money and usually gets the parties to the same place they would have been at months earlier.  If your opponent won't compromise and has outrageous demands, you may not be able to help going to trial.  If their settlement position is so unreasonable, the Court may later award attorney's fees to you if the Court believes that the position taken was unreasonable and in bad faith.  But a trial is usually a roll of the dice.  Judges would rather you work things out by consent, because it is your life (or lives) and you know your case better than the Judge does.  If you cannot or will not settle the issues amicably, then the Judge will do it for you.  That is the Judge's job.  But someone, or both parties will most likely not be happy with the outcome.  If possible, you should try to have some control over your destiny by being willing to compromise (hopefully the other side has the same idea) to reach a fair settlement that will also benefit the best interests of your children.
    Good luck!
    Jonathan D. Gordon, Esq.

    Please note, this blog is for information purposes only. It is not legal or psychological advice and it does not create an attorney/client or psychologist/patient relationship. If you have a question about a specific matter you should seek out an attorney or mental health expert to assist you.




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