What are the Chances that the Judge will Agree with You?

I have recently been asked to reflect on changes in the law and in my practice over the 40 years that I have been licensed as an attorney. There are many.

One thing that has remained constant is the optimism that my clients express that if they had their day in court, the judge would agree with their position and award them the time with their children, the support and the property that they want. They want my reassurance that I can get them what they want in court. This is something that I can rarely provide.

There are many reasons for this.

  1. Divorce law in Michigan and other states is founded on equity. Loosely translated, this means “what the judge thinks the law permits and what, in the judge’s opinion, is fair.”
  2. Often when I am first conferring with a client, we don’t know which judge will be assigned to their case. In our circuit, one of four judges will hear the client’s case. The judge is assigned by the clerk’s computer when the complaint (the document that starts a divorce case) is filed. Within our circuit, we have considerable variation on what each judge thinks is “fair.” For example, one judge favors 50/50 parenting time, almost without exception. Another favors long alternating weekends (Friday - Monday morning drop off at school) for the non-primary parent. Two are between these extremes. One factor on which they all agree is that property should be divided 50/50 with very rare exception.
  3. The outcome of a particular case is very fact specific. In other words, just because your friend received a certain award in his divorce case, doesn’t mean that you will receive a similar award, because the facts in your case will be different. Your wife may not be employed outside the home, while your friend’s wife is employed. You have one child; your friend has three. You earn more than your friend, or you have greater assets. Your friend has been married fewer years than you have. Your friend and his wife may have agreed on some issues that impacted the remaining issues. Your friend is employed by a major corporation while you own your company. The list of differences is endless.
  4. There is caselaw that guides the judge’s decision, but we rarely find cases that are exactly alike on the facts. The dynamics of the family are often nuanced. For example, your wife may come across as very needy and your friend’s wife presents as very self-sufficient. Your demeanor may suggest that you exert a high level of control in your family; while your friend may present as being more laid-back. Such differences are difficult to reflect in case law but will influence a judge in her rulings.
  5. The judge will only get a snapshot of your family. Due to the limitations of presenting evidence (rules of evidence), such as you cannot testify as to statements of the children or people who cannot be in court to testify, it is difficult to present the version of your family life that you want the judge to know. There are often time constraints on the judge’s availability. Therefore, the judge makes rulings based on what my clients consider to be incomplete information.
  6. The picture of your family that is presented when your spouse presents his/her side of the story will be different than the way you see your family. The judge will hear both versions. The judge’s vision of your family and the individual needs of its members may be different than yours.
  7. You are asking a complete stranger to make a long-lasting ruling that will affect your family for the future.

In short, this client who is eager to tell his/her story to the judge, is really frightened and wants to instill more certainty into the future. By placing their future in the hands of a judge, they are actually achieving the opposite. In the 40 years of my practice I have rarely been able to predict, with accuracy, what a judge will do. This is the experience of my colleagues as well.

How do you achieve certainty in your case? Work with a counselor/therapist and face your fears. Consider the needs of your spouse and your children. Work with your spouse and his/her attorney in mediation where it is safe for you each to express your concerns about the future and talk about ways you wish to achieve your future goals. Be open to considering alternate means of achieving your goals other than the ways you proposed early in your case.

Judges are hard-working people who will resolve disputes when the parties are unable to do so. In other words, they give you time to settle your divorce with your spouse. But when you are unable to do so, they will decide for you. The thinking in the courthouse is that someone (the parties or the judge) has to make final decisions and close this file.

You and your spouse know your family dynamics; what works and doesn’t work, the best. You are the most qualified people to make decisions for your future. For really good outcomes, do not delegate this important work to a judge.

Work with a mediation and collaboratively trained lawyer to retain control over your and your family’s future.

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