A Look Inside the System

Divorce courts operate with the same basic rules used by the courts that deal with car accidents, disputes between giant corporations, and criminal charges from petty theft to murder. Unfortunately, these rules do not work well in solving the disputes that arise in the process of ending a marriage.

In most states, divorce courts are a branch of the local trial court—called the Circuit, Superior, or District Court. In Delaware, Hawaii, Massachusetts, New York, Rhode Island, South Carolina, and Vermont, these courts are entirely separate from the rest of the court system and are called Family Courts or something similar. Regardless of how they are labeled, the operating and procedural rules in these courts are the backbone of what is called "the adversary system." It is built on the ancient British practice of having lawyers representing each side of a case fight as hard as they can to defeat their opponents at a trial. The theory is that after hearing the evidence and argument from these lawyers, a neutral judge or jury will figure out who is telling the truth and reach a just decision as to which side wins.

Matters such as divorces were handled in merry olde England by officials known as chancellors in courts that were connected to the church. Juries were not used in these Chancery Courts—and to this day, juries are almost never used in United States divorce courts. Texas is an exception. But even there, jury trials are used only occasionally in divorces. More often then not, a Texas lawyer will use the threat of demanding a jury trial as part of an elaborate game of Chicken, as in: "If you don't agree to lower your claim for alimony, I'm going to insist that this case be decided by a jury."

In all states, especially in cases that involve big bucks, each side will normally spend months getting prepared for the trial. The lawyers will investigate the facts, take depositions of important witnesses, and subpoena records from banks, employers, and any other source they believe has relevant evidence. They may prepare charts and elaborate electronic presentations to illustrate their arguments. They skirmish in pretrial hearings to exclude harmful evidence and to narrow the issues that can be considered in court. All of this is in preparation for a trial that—if it occurs at all—will usually take place at least a year or two after the case was filed.

This is the way disputes that land in American courts are resolved. You can see dramatizations of these courtroom battles on television. One channel even devotes much of its time presenting scenes from splashy trials all day, every day. The system actually works relatively well to resolve a legal situation that doesn't involve divorce—such as a murder case, a major car accident, or a claim of medical malpractice. And if the stakes are high and the winner is going to be determined in a trial lasting days or weeks before a jury, the need for all of that painstaking preparation is understandable.

Why Divorces Don't Belong in Court

Unfortunately, the traditional adversary system works very poorly when the issue before the court is the breakup of a family. In such cases, hours spent preparing for trial and parading witnesses on and off the stand could be spent much more productively if the people involved would calmly discuss and settle the issues somewhere other than a courtroom.

But once divorce lawyers have taken a case into court, they are required to rely upon the historical underpinnings of the adversary system, and normally have little choice but to follow the same procedures as business and criminal lawyers in getting ready for their trials.

They sometimes have the family's children studied by experts to determine how much time should be spent with each of the parents. They may also enlist accountants to examine the couple's assets and appraisers to evaluate the family business, home, and vehicles. They often take the depositions of these experts and question each of the spouses under oath in front of a court reporter about their income, what it costs to keep the household running for an average month, and many other personal subjects. They try to develop facts that show that one of the spouses is inept as a parent—or, if that fails, how flawed he or she is as a person. Sometimes they hire a private detective to follow one of the parties in the hope of garnering information about damning conduct.

Then, a year or so after filing a case, the lawyers on both sides will organize their anticipated trial presentations. They may have been discussing settlement for some time, but as their trial date approaches, the intensity of settlement negotiations increase.

In more than nine out of ten cases, a settlement is reached before the day of trial. And in an amazing number of cases, the settlement is reached only a few days or hours before the trial is scheduled to begin. Settlement often comes in an exchange of letters or telephone calls between the lawyers. Other times, it will come as a result of a meeting among the lawyers and their clients in a conference room. Many settlements occur in a judge's chambers—a fancy English name for an office, usually with a private bathroom, next to the courtroom—at a settlement conference scheduled by the court just before the trial date. But the bottom line is that almost all cases wind up settling, not actually going to trial.

Most divorcing couples could avoid all of this legal wrangling and get on with their lives much more quickly and inexpensively by settling their disputes somewhere other than in a courtroom.

And you probably won't be surprised to learn that the divorce courts are riddled with a number of additional drawbacks—from high costs to disgruntled judges—that underscore why they are unfitting places to end a marriage.

High Costs

Lawyers, accountants, and child custody evaluators often will spend a ton of the divorcing couple's money preparing for a trial that is highly unlikely to occur.

Of course, a lawyer who relied upon a settlement that didn't occur and then was forced to go to trial unprepared would do his or her client a great disservice. So, months before trial, many lawyers will describe the legal situation for their clients in a speech that goes something like this: "This is not an easy case and if you want to increase our chances of winning, I am going to need to hire several expert witnesses to go over your finances and your spouse's finances, to evaluate the stock options your spouse has earned, and to establish that your spouse is not a very good parent. It will cost between $10,000 and $20,000 to hire these experts. But I think that if you want to win, you should do it. What do you say?" Many clients cave in and agree to pay the costs of escalating the fight.

In cases in which at least one of the parties earns a substantial amount of money and there is a major disagreement about when their children will be with each of the parents, it is not unusual for the lawyers' and psychologists' bills to reach $20,000 on that issue alone. If the parties can't pay fees of this type upfront, the case will be presented less expertly.

In a recent article in The New Yorker magazine, a prominent Manhattan divorce lawyer stated that his fee is $550 an hour with a minimum retainer of $25,000. Another lawyer is quoted in the story as saying that big cases are likely to be "a battle of forensic accountants." In one case, he said, the accountants had billed more than $1.5 million. Of course, these sorts of bills do not arise in garden variety divorces. But any contested divorce is expensive and can be as costly as one spouse wants to make it.

Antagonism and Angst

In addition to being outrageously expensive, the present legal system needlessly heightens the negative emotions of the divorcing spouses by purposefully pitting one side against the other.

Many more people than you would guess maintain at least some sort of a friendly relationship with a former spouse after a divorce. But that is highly unlikely if the two of you go through a contested trial.

Harm to Children

Chapters 8 and 9 include detailed discussions of the legalities and practicalities of child support, custody, and visitation. But for now, realize that in addition to what it does to each of the parties, a contested divorce trial ultimately ends up causing terrible damage to any children caught in the crossfire.

Here are a few truths I have learned over the years.

• Unless one parent has acted particularly ugly, many children live for at least a little while after the break-up with the secret hope their parents will get back together. It is not a thought they often share with anyone except, perhaps, their best friends. They look for little hints that an impending divorce will go away, and pale when they hear one parent badmouth the other.
• For children, the prospect of their parents splitting up is so primal that the first thing many worry about is whether there is going to be a roof over their heads and food on the table once one of their parents moves out of the family home.
• Being confronted with the life changes brought on because "Mommy and Daddy don't love each other anymore" is frequently a shock from which a child never quite recovers. There are counselors who can help a child get over such feelings, but that sort of help is not as available or used as often as it should be.

Court battles about how much support will be paid, who is to get which car, and how much time each parent will have with the children all have some unpleasantness about them. A wife may suggest that her husband has some money coming into his business under the table. A husband might argue that his wife's long distance telephone bills are excessive. They both may claim their children are uncomfortable around Mom or Dad's new friends.

Resolving these disputed issues out of court can frequently be accomplished quietly and respectfully around a kitchen table or in a conference room. But having a judge decide these sorts of issues after hearing each of the parents testify in the formal public courtroom often fosters anger, embarrassment, and hurt feelings that are bound to be carried home to children who live there.

Pretty soon, "Daddy" becomes "Your Father." "Mom" is "Your Mother." Messages are handled by notes sealed in envelopes which the children are asked to carry between two armed camps. Doors that used to be closed quietly are now slammed shut. And a child's plea for a new pair of sneakers just like a friend has may be answered with: "Ask your father; he has all the money."

But I have seen enough of the real success stories to feel a surge of deep respect for spouses who work to maintain a healthy relationship. In most divorces, both spouses usually have many reasons to be hurt and angry about their former partners. But a more reasoned approach is to send a child off for a visit with: "Have a great time with your Dad—and tell him I said hello." Or: "Your friend Ralph's new sneakers look great. I'll talk to your Mom and see if we can find a way to get some for you."

Long Delays

Another reason that divorce courts don't work well is that, in comparison to the rest of the court system, they are often seriously understaffed both by judges and support people, which can cause long delays in processing cases.

In most areas, presiding judges, who decide which judge is going to sit in what courtroom, need to keep the criminal courts processing the very visible cases of people charged with breaking the law, so a large portion of the court's resources are directed to the criminal division. And the lawyers involved in the accident cases and business disputes use their considerable influence in the state legislature and elsewhere to have as many courts as possible devoted to their trials. Family and juvenile courts have lower profiles than regular civil and criminal courts and are often overwhelmed by backlogs of cases waiting for hearing.

"Short cause cases" involving simple issues such as requests to grant temporary support before trial are usually scheduled to be heard in the mornings in most divorce courts. But because of the large number of such cases, many are frequently bumped until the afternoon, the time often reserved for contested "long cause" trials. And some cases set in afternoon get put over to the next day or the next week—and sometimes to the next month or longer.

You may have to wait a very long time for a hearing on the day you have been told to come to court—and at the end of the wait, you may be told to come back on another day.

WARNING
You'll pay while you wait. If you've hired a lawyer to help handle your divorce, he or she will charge you for the time spent waiting for your case to be called. I still have a little plaque that a legal publishing company sent me when I graduated from law school in 1961. It contains a drawing of Abraham Lincoln with a quotation: "A lawyer's time is his stock in trade." And a lawyer's waiting time frequently is charged the same as his or her trial time.

The length of time it takes to get a divorce case from filing to judgment is one of the major complaints all divorce judges hear about the system. And there are no signs of that situation improving substantially in the near future.

The obvious solution is to assign more judges and staff to handle family law cases. But there are no indications that presiding judges are going to pull trial judges from other functions and assign them to divorce court. Assignments of staff that might help shorten proceedings aren't likely to increase, either. Increased financial support from the state legislatures would take care of the problem, but the cause does not have political support. Many people in the court system consider divorce courts as the poor cousin of the system. They would rather not hear about all of the "unfortunate people" trying to get their divorce cases to trial—and concentrate instead on flashier causes.

Overloaded Calendars

The fact that divorce courts are understaffed not only accounts for long delays in hearings, but it often means that those appearing in court have a dizzyingly short time to present their cases, requiring judges to make swift decisions, without much time for consideration.

For example, on almost every morning of the ten years I sat in divorce court, three hours were allotted to hear the evidence and make orders regarding child custody and support in the 35 cases or so that were scheduled. Some of them would settle through negotiations lawyers reached in the hallway in front of the courtroom, but many did not. For those that didn't settle, the rules provided up to 20 minutes for hearing each case. But on mornings when there were a large number of cases scheduled, I could only devote ten minutes to many of them.

Wrong Decisions

Even when the parties have good lawyers and enough money to provide the court with tons of information and professional advice on who should have the custody of a child or how much support should be paid, there is the possibility that even a well-meaning, experienced family law judge will rule for the wrong side. And an inexperienced judge or one who is disgruntled with the assignment to divorce court may make a decision that is just plain factually or legally wrong.

Some examples help illustrate.

• In the course of divorcing, a small business owner may come to court without financial records and swear that the business is losing money. Her spouse might testify that she does a lot of business in cash "under the table." The judge must set child support and alimony based on a conclusion about just what the business really earns on an average month. And where the records are incomplete or falsified, a judge may end up believing the wrong party. As a result, the court order may provide inadequate or overly generous support.
• The judge who must decide which parents the children will live with will never know them as well as their parents do. And that judge will never know for sure what happened during a violent incident that occurred behind closed doors six weeks ago. Testimony given in court often varies widely between two witnesses. Sometimes there are discrepancies or other indications about truthfulness at a hearing, but at other times the ultimate decision is based on little more than a judge's gut feeling. I know that in some cases, my gut must have been wrong and that a child's life was probably affected adversely.
• When dividing a couple's possessions, the evidence may show that a large sum of money disappeared from the family bank account several years ago. The husband may testify that he and his wife jointly agreed to put the money into a restaurant that later failed. The wife may believe that the husband spent it on a suspicious "business trip" to Las Vegas that included several nights in a luxury hotel with a new girlfriend. Nobody has documents to verify their claims. The judge can't make an investigation, but must decide based upon the incomplete evidence at hand.

One of the many sad but common scenes in divorce court is the husband or wife who walks into court with a relaxed, almost cocky look, apparently convinced of winning a great victory. Often this is because a lawyer who doesn't really know the way around divorce court very well assured him or her that the case was a sure thing. Then the testimony begins. And on cross-examination, the opposing lawyer will start asking some difficult questions. The "sure thing" begins to crumble and the formerly cocky lawyer spends a lot of time conferring and whispering with the formerly cocky client.

Whatever the reason, when you let a judge decide an important matter in your life, understand there are few "sure things" in a court hearing—and there is always a possibility that you will not prevail. (See Chapter 4, Don't Get Hung Up on Fairness, for more on this.)

WARNING
There are no special truth-seeking tools. Occasionally, various experts present classes to judges, purporting to teach them how they can tell whether a person is lying by evaluating facial clues. For example, one such class presented videos of people—one of whom was Oliver North, of Iran-Contra infamy—testifying about things that later clearly turned out not to be true. The instructor pointed out how a facial tic appeared every time North was telling a lie. The connection was clear, but not particularly helpful in evaluating the truthfulness of a person sitting in the witness box in a courtroom. To make it work, a person would have to put a witness through hours of testing of facial movements that occurred during lies.

Lying Witnesses

If everyone told the truth, trials would move more quickly—and everyone would be happy with the results. But a sad truth is that witnesses who have sworn to tell the truth lie in court every day. And one of the reasons you may receive a decision that is wrong is that the judge may believe a witness who lies while testifying for your spouse. It's just another downside of the courtroom experience.

Because lying is an especially common problem in the charged atmosphere of a divorce trial, here are a few tips on what to do if you are forced to take your case to court and you are concerned about the possibility of your spouse fabricating damaging testimony.

• Find out ahead of time what lies to expect. Perhaps your spouse will tell you informally what evidence he or she plans to present in court. If not, there is a legal process called "discovery" that can be used to obtain that information. This is something that lawyers do regularly. It can be a little tricky to navigate on your own.

RESOURCES
If you decide to conduct your own discovery, the process is explained well in Represent Yourself in Court, by Paul Bergman and Sara J. Berman-Barrett (Nolo).

• Gather documents or witnesses to present the truth in court. As with the discovery process mentioned above, you may want to hire a lawyer for help with getting documents and testimony into evidence. For example, if there is a dispute about how your child is doing in school, serve a subpoena on the teacher to come to court and testify about it. If the disagreement involves some financial transactions, serve a subpoena on the financial agency involved so that the representative can verify what occurred. If you need an agency representative to bring records to court, you use something called a subpoena duces tecum, also explained in detail in the book mentioned above.

These procedures take some time to set up, so don't wait until the week before your hearing or trial to get them underway.

Disgruntled Judges

Given the importance of decisions in divorce cases, you might think that the most talented judges available would be assigned to hear them. You would be wrong.

Serving as a divorce judge is usually considered one of the least attractive judicial assignments around. Many judges end up presiding in a divorce court simply because they don't have enough seniority or other "juice" to claim a more prestigious spot doing civil jury trials or important criminal cases. Some count the months until they will be reassigned and let it be known they will do anything they can do to avoid a return assignment.

Because of the political process that results in most judges being elected or appointed to the bench, few lawyers who specialize in divorce law end up as judges. Unless they have been divorced themselves, many have had little reason to think about the process since the time they were forced to study it to pass the state bar examination.

The distaste many judges have for serving in divorce court is not difficult to understand. Family law judges have a saying: "In criminal courts, you deal with bad people on their best behavior. In family court, you deal with good people on their worst behavior." And there is quite a bit of truth to that saying. Many people in the process of divorce are going through one of the most difficult periods of their lives. Sometimes they say and do stupid—even despicable—things they would normally never think of saying or doing. Dealing every day with that sort of conduct can be depressing.

And it doesn't show signs of improving. One family law judge recently wrote to me about his experience in returning to the divorce court bench after a stint in retirement: "Upon my return, I found that the level of acrimony was even higher than it was when I left five years before. The concept of truth had totally disappeared with some litigants. They would say whatever they thought would put them in an advantageous position. The longer a judge stays in family law, the higher the stress levels become."

There are exceptions, though—divorce judges who look forward to each day as an opportunity "to do the right thing" for people in a difficult time. And a number of judges sent to serve in family court plunge right in, take courses to become familiar with the practicalities and the law, and are soon become extremely good at what they are doing.

However, the fact that there are a good number of judges who want to avoid being in family court is another reason you should avoid it yourself if possible.

Introduction

Unless you're very lucky, you probably won't be able to totally avoid having to go into divorce court in the process of getting divorced, but you should do your best to make as little contact as possible with this jungle of bickering people, long delays, and harried and sometimes uninterested judges. This may sound like strange advice coming from a judge who happily spent most of his judicial career sitting behind the bench in a divorce court, but it is the best advice I can give you. I loved the work, but saw over and over again that the system stinks. Whatever you do, try to keep your divorce out of divorce court.

Later chapters of this book offer lots of advice about how you can keep your divorce out of divorce court. This one explains why.