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Lady Is Blindfolded!

The Courts Only Weigh What You Get On the Scale – Not Any Other Facts

The Lady Is Blindfolded!
By: Carl R. Frederick, APSA President

It is quite common to hear from those who just laid out over $25,000 to a divorce attorney, did badly in the divorce, and still owe their attorney another $10,000. Usually the attorney has refused to do any more work until paid. What never ceases to amaze me is how otherwise well educated and very intelligent persons, especially upon being served a post-divorce motion think all they need do is send a letter to the court or to the judge suggesting he send out a court investigator and see that they are right and have gotten a raw deal. It’s true most such people got a raw deal – but unfortunately they got the raw deal because they failed to understand what the civil court system provides and does not provide and how it works. Courts have no investigators and do not even pretend to know the real or full facts, but obviously the public generally interprets the scale as representing “fair” weighing of all the facts. That is NOT what the justice scale symbol really represents – rather, it is meant to convey that it ONLY weighs those elements that make it on to the scale – and often some key facts do not. Furthermore, the judges and law clerks sometimes have to decide hundreds of motions each motion day. At best, the most dedicated and caring law clerk is but a weary, low-paid legal intern gaining experience the first year out of law school. Even the best of motion papers, with exhibits and in good order, must become somewhat of a blur at some point in a long day of reading one motion paper after the other.

The blindfolded lady holding the scale is not a trademark for “justice” in the sense of a wise and right result but rather indicates just what our adversarial civil court system represents – he who can get the most weight of evidence allowed to be placed on his side of the scale will tip the balance and win. Obviously some parties and their attorneys, along with the nature and particular perceptions of a judge, may be able to get what appears to be more weight on the scale, even though the actual reality of all the facts – including those they failed to get on the scale – may well be in the opposite direction.

Understanding the rules, how the system works, organizing one’s information and evidence for either presentation as a pro se or by one’s lawyer, is largely dependent upon the party – not the lawyer, if they are represented by one. It’s clear, particularly in family law issues from adoption (including divorce to visitation rights), that many of the people who come to us late in the divorce case or in the post divorce endless motion warfare — have failed in at least one key area. Divorce court can only provide a legal divorce – the actual marriage ended prior to one party filing papers. In modern day America if one party wants to end the legal marriage – they will be granted a divorce. Given that reality one should organize all the issues, facts and finances on paper by appropriate category and edit it over a number of days. One book that will be very helpful is Practical Divorce Solutions by Ed Sherman. Every divorce attorney tells us that 50% to 95% of their time in a case is listening to the client and trying to understand the facts of the matter as relates to the “legal issues” because those are the only ones the lawyer and the legal system deal with. These are quite often very different from the emotional and other issues, as important as they may be, that the client is wrapped up in and consumes attorneys time (at $200 or so an hour) which can quickly end up to be big money. Furthermore our legal system — and the courts in particular – are a very poor place to try and resolve such issues because our system is an adversarial system – and thus it would be much better to try and use mediation or arbitration. In its book Divorce & Money, published by Nolo Press, the authors point out that there is the issue of Legal vs. Financial realities of divorce. There is almost never a day that somebody doesn’t contact us because they are not getting paid the full amount each month for alimony and/or child support or, conversely, they are supposed to pay $4,000 a month but can’t because they lost their $10,000 per month job and now only make $3,000 a month. The point is that courts regularly grant an amount in an order but the court does not provide the money to pay it. It is far better to get a negotiated agreement that the parties are more likely to live up to.

It would be much better if people came to us for information months before actual separation or divorce action was contemplated or initiated. Generally the best solutions to such difficult problems are not to be found in the courts. Court imposed resolutions of such personal matters are rarely satisfactory, consume tremendous time and generally will end up generating large legal bills. For that reason one should get the recommended paperback books and read and understand them and seek the least litigious course for a divorce settlement possible. If the other side is determined to use the system (more appropriately described as misuse the system) to inflict aggravation and costs then all the more important to read the books. Remember the “legal divorce” resolution decided by the court presumes both sides have done an essentially equal job of getting their facts on to the scale of justice.

The abuse of the “domestic violence” issue is a standard trick used by many parties and their attorneys to set the stage for later leverage in a divorce for possession of the house or as an added point in child custody matters. The use of this tactic should not be confused with the “battered spouse” syndrome. Sometimes a party does not understand the legal concept of domestic violence, which could technically consist of making verbal or written communication to one’s spouse or ex-spouse’s employer for the clear purpose to annoy, embarrass or hurt ones career, and never consist of actual violence. An admission or conviction of domestic violence will usually weight against a party when it comes to the divorce, property rights or child custody.

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