Divorcing spouses tend to over-estimate what is really available to them in court. Here are 6 divorce court myths:
Myth #1 – Trials
Lots of divorce cases go to trial and are decided by a judge. Actually this is true for only about 3% of all divorce cases. All others are either decided by default (one spouse doesn’t participate) or by some sort of agreement between the spouses.
So what we really have for divorces is a settlement court system with a litigation fallback. In nearly all divorce settlements, the actual issues of law and fact are never resolved. The spouses simply come to agreement somehow to accomplish the divorce, even if this is at the last minute before trial.
Myth #2 – Lawyers Required
If you are appearing in divorce court for a hearing or a trial, you need to have a lawyer. In fact, at least 50% of the divorcing spouses who appear in court speak for themselves in front of the judge without a lawyer. Some do well and some do poorly. But you do have a choice and judges are accustomed to hearing from unrepresented spouses.
You can also prepare required court paperwork by yourself or with the help of a paralegal or Legal Document Assistant. An attorney is optional.
Myth #3 – Being Heard
If you or your attorney appear in court, you’ll be able to fully present your case and arguments. In fact, the judge controls the conversation. Most judges are very busy and have many cases to deal with every day. Judges tend to want to “cut to the chase.” Don’t be surprised if you get a few sentences out and then the judge directs the conversation by asking you questions.
You could say that in a sense, mediation offers a sort of “day in court” that divorcing couples have never really had. In court you may not get a chance to say what you really wanted to say. But in mediation you will get this opportunity. You will be heard if you want to be. Of course, the mediator is not there to make decisions for you so there’s not much point spending a lot of time trying to convince the mediator of the rightness of your point of view.
Myth #4 – Justice
A judge will make the right or fair decision. Each spouse often believes this even though they have differing points of view and concepts of fairness. Obviously, the judge is unlikely to deliver to each spouse what the spouse thinks is “fair.”
Judges are supposed to decide divorce cases according to the law. The law can’t promise to deliver “fairness” in every situation. In most respects, divorce law leaves a lot of room for judicial discretion. How the judge applies the law may depend on the judge’s best guess as to the facts of the situation, given that the spouses often present differing abbreviated versions of the “truth.”
Myth #5 – Rationality
Judges are rational and the decisions they make are purely logical and even-handed. In fact, judges have biases in their thinking just like everyone else. They get hungry, tired, bored, edgy, etc. and this can affect their decision-making. No one is completely neutral since everyone participating in the divorce is affected by it.
Therefore, even divorce mediators aren’t 100% neutral. They are trained to try to keep their biases from affecting the mediation. A good mediator is balanced in the way they work with the spouses so that neither spouse receives preferential treatment.
Myth #6 – Finality
A court decision is the final word; it will be followed and it’s enforceable. Unfortunately, non-compliance with court orders is not at all uncommon. It’s worst with regard to child support. The court system has ways to punish people but not a lot of power to compel behavior or compliance.
The best and most likely way to achieve compliance with the terms of a divorce is for both spouses to have voluntarily agreed to those terms. Divorce mediation of course tries to accomplish exactly this.
Good article and discussion. Might have your permission to re-post this as a resource and credit you.
Thanks. Yes, please feel free to link to this article.
Great article! It’s interesting how many clients feel they’ll have their say in court, “wait until the judge hears my story” mentality. I often suggest that clients take a day and sit in on divorce court prior to their day. They’ll see that very little is often being said. Your piece reminds us to warn clients against wanting their “day in court.”
Hi Sheila, Great idea suggesting to clients that they sit in on divorce court for a day to see and hear what goes on!