Short of a settlement, divorce litigation is replete with pitfalls that are frequently unavoidable.
If the end of a marriage relationship is emotional for the parties, divorce litigation is similarly emotional. But there is more to it than that. The emotional element on the part of the litigants is to be expected and both the parties and experienced counsel will deal with it as best they can. But there are aspects of this type of litigation that are beyond the control of the parties but just as significant.
Competence of the Court
The lawyer who specialized in divorce litigation before he became a member of the Judiciary will not necessarily be assigned to the Matrimonial Division of that Venue. He could be assigned to the Criminal Division, the Civil Trial Division, or even the Small Claims Court. After being there for a term, he could be reassigned to yet another division but not the Matrimonial Division. The net result of this assignment process is that a judge who never tried a divorce case is now going to preside over a bitterly contested divorce involving income and assets in the millions of dollars with experienced counsel representing both litigants.
Characteristically, these cases generate sophisticated and complex issues of law and rules of evidence that must be decided during the course of the trial. The judge does not recognize the issue when it is raised on motion by one of the lawyers, nor does he have any idea how to rule on it. He immediately calls his law clerk and tells him to start researching the issue, but he too needs help. “The blind leading the blind” comes to mind. What the court does is what an experienced neophyte would do in a similar case; put some heat on counsel to settle the case. If they settle, he does not have to come up with an answer which, if incorrect and appealed, the appellate court could reverse and thereby offend his judicial ego.
There is also the situation where an inexperienced and not particularly learned judge wants to conceal his insecurity by offering to the litigants his thoughts on what caused the breakup of the marriage. Picture if you will an extremely wealthy and visible family attending a Pendente Lite application (a dispute brought to the court for resolution before the commencement of the trial) dealing with a relatively minor issue. The courtroom is filled to capacity; the parents of the litigants are also in attendance when the court asks the husband’s counsel to be seated just as he was about to start his presentation.
The judge addresses the litigants, directed more to the husband than his wife, and proceeds to suggest that maybe some people are too rich, have too much money, and therein we find the problem that is the genesis of this marital conflict. It went downhill after that. When the husband’s counsel was permitted to commence his argument, it was anti-climactic and sterile. How is the husband’s counsel going to convince a judge who has already ruled against him? How do you defend the court’s comments to your client and his parents? You can’t. You bite your tongue, go through the motion and then report him to his superiors.
The husband’s counsel moved for the judge to recuse himself from the trial of the case and the motion was granted. The judge ultimately offered his apologies to counsel in chambers. Does this generate confidence in our Judiciary? Do you want them to decide issues that will impact on the rest of your life?
Competence of Counsel
There are lawyers who have never tried a contested divorce case and refuse to do the necessary research to prepare them for such an undertaking. Their only salvation is that the case may settle before they are exposed. What that means is that the inexperienced attorney will recommend less than his client should receive in order to settle. The client loses and the lawyer escapes.
What Should the Prospective Client Do?
Having said all of that, what should the prospective divorce client do? First of all, be the certain dissolution of the marriage is what he wants. When a client comes in, tells his sad tale to his lawyer, and then asks, “Should I get a divorce?” the answer is obvious: no. When you want a divorce, you ask your lawyer to get it for you; you don’t ask him if you need one. Divorce litigation is not easy and it is expensive, so unless you need and want a divorce, don’t do it.
Once you have concluded that you cannot have a meaningful and purposeful life without a divorce, what now? You look for an attorney who has had a significant background in Divorce litigation, lectures to Bar Associations on the Trial of Divorce Cases has been involved in cases that have resulted in Reported Opinions (an opinion is Reported if it either clarifies or established new law), or has written articles on the subject that are published in legal periodicals.
Then, and this is most important, meet with him and see if you relate well with him. You can have the best lawyer in the State, but if you are not comfortable with him and believe that he knows “where you are coming from” and trust he will cover your back, save your money. When it is all over; win, lose, or draw, you must have the feeling that you had the best lawyer and the result he achieved for you was the best you could have hoped for. In fact, if the results displease you, you walk away convinced that it was the judge who was incompetent; your lawyer was the best. Less than that, you will be unhappy for the rest of your life second-guessing your every decision and that of your lawyer.
Bottom line, there is no absolute formula for successful divorce and custody litigation. If you go into it knowing that it is not an exact science and that you have the best lawyer representing you, you will get your divorce and go on with your life. And please, when it’s over, it’s over.