Don't Count on the Court

court court order Feb 18, 2024


Many of my clients feel a certain sense of safety and leverage, believing they can utilize the court, if need be, as a legal backstop. “If my spouse can’t be reasonable,” they think, “then I’m taking them to court, where the judge will make them see the light of day.” Sounds good in theory, except this is a gross misconception about the court’s capacity, willingness, and efficacy.

The court does not right wrongs, whether the context of the marriage, the divorce, or in a post-divorce matter. Asking the court for help resolving any issue is kind of like playing roulette. You put your money down on a black or red number. The wheel is spun and the ball bounces around, flitting in and out of the little cubbies. For what seems like an eternity, the wheel spins and spins and spins. And then it spins some more. Finally, the ball bounces off the roulette wheel, landing on the floor. Too bad. No one
wins, and the croupier keeps your money. Welcome to decisions made by the court system! And, really, you should have to sign off on a waiver before you’re allowed to submit any issue to the court for resolution. The waiver would read something like this:

WARNING! The court never vanquishes a ne’er-do-well, rights the numerous wrongs in a marriage, and rarely holds anyone accountable for failing to comply with discovery dead-lines, a court order, or a judgment and decree. We’re not in the business of setting the record straight. You will not be vindicated. The judge will never clap after reading your paperwork or when your attorney is done presenting. The decision may follow legal precedent…or not. Your order will most likely be written by a law clerk, who is both over-worked and underpaid. The judge may review and edit the decision, but they’re often too busy hearing scores of cases just like yours to micromanage the drafting of every order, with a hundred or more cases on their docket. Sorry to burst your bubble. Sign here.

Why is this so?

First, the court will never, ever know all the facts of your case, let alone you or your family on a personal basis. The judge isn’t coming over to your home for Sunday dinner to meet you and your kids. Further, the judge really can’t take the time to wrap their arms around your situation at a court appearance. Moreover, kids aren’t usually permitted in court, and there are often ten or fifteen other cases waiting for the judge’s input that morning (or afternoon).

The only insight the court will have into you and your family is through the rough sketch presented in the written pleadings, which are submitted to the court prior to the hearing. If a court hearing were an art class, the snapshot of your situation offered by the pleadings would be akin to submitting a smiley face as your homework, in place of a detailed portrait, because no court is going to read a hundred-page novella
of your legal woes.

Second, the judge may not have ever practiced family law, and may only hear these cases as a small part of their overall rotation. Many judges hear all kinds of cases, such as civil, criminal, juvenile, probate, and mental health. Even when a family court is a stand-alone, and the judges assigned only hear family law cases, you can’t count on them to know every last nook and cranny of the law. So, submitting a memorandum of law is always best practice, and, if you don’t, you’re betting that the overworked and
underpaid law clerk, who has twenty other orders to write, will find the pertinent statute or case law you need to prevail. Maybe!

Third, the courts are often swelled with family law cases in which folks don’t have an attorney. When this occurs, the court cannot shift part of the workload to the attorneys, who often are required to submit proposed orders, giving the court a head start on drafting a final order. When the court must start drafting from scratch, the legal works are gummed up, slowing the process way, way down.

Finally, the court is generally constrained by the boundaries articulated by the law. Most states require the sharing of parenting time, a fair and equitable division of marital property, and may order the sharing of income between the parties if there’s a big difference between the parties’ current earnings. That’s just how it is, and the court is unlikely to go outside of these bounds. Why? Because it increases the chances that their decision could be reversed on appeal. It also takes a lot more effort to draft the order, because if they end up deviating from the guidelines, they usually have to draft additional written findings to bolster their decision. This all takes more time, more effort, and more consideration, all of which are in short supply.

Luckily, nine out of ten cases aren’t resolved by the court. They’re resolved by an agreement between the parties. To the best of your ability, make sure you’re a part of this majority.

Best of luck on your journey - I hope this was helpful!

If you need my ultimate resource for navigating the legal, financial, emotional, and personal growth aspects of divorce, you can get my book, Divorce Wisely, here.