Spotlight On Family Law: Legal Victories And Moral Victories

First Steps

Your soon-to-be-ex is a no good, cheating, lying jerk!  But for all of the nonsense he/she has been pulling for the past twelve years, your marriage would be intact and harmonious.  Now everyone involved is suffering and you don’t just want to get divorced, you want to make them pay.  You want the entire community to know what a jerk they have been and it would make you feel especially good to have the judge dress them down right in front of God and everyone.  You want justice.  In particular, you want the kind of moral justice that demonstrates that you have been in the right and they have been in the wrong.

Every client who walks into my office has a story to tell.  The majority of these stories describe how the marriage broke down, usually littered with broken marriage vows and reasons why the marriage became unworkable.  Many clients hold to the idea that their spouse should be punished for reprehensible behavior – and they often make well-taken points regarding the moral failings of their spouse.

You want to hire a lawyer who is just as outraged as you are – who is dedicated to knocking this jerk out cold for all their bad behavior.  And we do that – but we are also stone cold strategists who do not let ourselves be overwhelmed by the emotional details of particular cases.  I am constantly strategizing your case through short-game, mid-game and long-game approaches.  We are cagey; we think through various approaches, taking victory when it is right in front of us and sidestepping and being patient when the circumstances call for it.  All in all, our goal is to get you what you want.

One of my jobs as an attorney is to help my clients distinguish between moral and legal victories.  Although, at least on its face, California has done away with moral victories –we set most support based on rigid calculations and the majority of child custody and visitation provisions follow general principles even if they are not structured in the same rigid manner.  We can often use facts that sound like the moral failings that my client would like to share about their spouse, but we do so in the context of factual evidence that tends toward leading us to a place we want to be.

Gone are the Days of the Contested Divorce

California did away with contested divorce actions back in 1969.  In the old days, a party would claim that the other party breached the marital contract in order to push up support or to take advantage in the division assets.

There were several important reasons for this: first, to say that people stretched the truth in these actions is an understatement.  The truth is that parties had to allege a violation of the marital compact or continue to live in “marital hell.”  In order to avoid getting nailed with increased support and/or losing out in the division of assets, rather than provide defenses, would essentially claim “recrimination” –or “you did it too.”  This lead to nasty legal battles over essentially who was at fault for the failure of the marriage and long examinations of witnesses and parties about the intimate details of the sex lives and the rest.

Gone from the divorce courts are the types of moral victories that used to be sought in divorce cases.  Now, all it takes is for one party to claim “irreconcilable differences” – which the Court accepts as true – and the parties can proceed to divorce, even if one party makes clear that they disagree.

Legal Victories and Moral Victories

For example, the wife might have been gone five nights a week at her boyfriend’s house during the marriage.  That is a great moral reason for getting divorced, indicating “irreconcilable differences,” all that is needed for a divorce in California.  However, generally speaking, this information is going to prove that the marriage broke down, something that does not need to be proven in California.  What we can use such testimony for is to show that the father, in this case, has been home each night with the children and is thus their primary caregiver.  We use that type of information not to punish the wife for stepping out on the marriage, but to award custody and the lion’s share of custodial timeshare with the children to the father.  Again, the Judge should not (not always, but most of the time will not) consider that the wife was no longer honoring the marriage contract but rather that the wife was not home to take care of the children.

The legal victory is that dad has more custodial time with the kids and thus either a reduced child support payment or a larger child support payment from the wife.  Note, however, that the moral victory the client might be seeking is not front and center.

Using Your Testimony to Get You What You Want

I am often asked to bring out certain types of testimony that is only potentially or tangentially relevant – drugs, alcoholism, previous criminal history, adultery, pornography and other addictions, new boyfriends/girlfriends, immigration status (this is a big one in Santa Maria and the biggest no go since the Court has ruled that undocumented immigrant status is not a “bad act” for dissolution purposes).  I work very diligently to help my clients tell coherent story so that they are heard by the Court, but I am also very aware of the limits of relevance of particular evidence on the one hand and the possibility of doing damage to our case on the other.

The key is to make a presentation of evidence that gets the client what she wants.  So, where a client wants to ensure that she has the bulk of the parenting time and a support payment to match, we will work very hard to show that she is the primary caregiver to the children and that the father works a second job or that the father has a place to move (i.e., with the girlfriend).  What we generally will not do is try to show that the father has taken a new girlfriend, at least not to punish him for it, unless it is relevant to the matter at hand, i.e., custody and support.

Strategy Wins Cases from the Beginning to the End

While my clients are often seeking moral victories, I work with them to understand that the only true victories they are going to get are legal victories – and while these may not seem like moral victories (i.e., the judge may not reproach the bad acting spouse for their behavior), they are the most powerful victories.  By seizing the advantage in early hearings, the party then keeps that advantage throughout much of the matter.

As I have said elsewhere, if you have limited resources, hire a lawyer right at the beginning of your case so that you can seize any legal advantage you can get.  After that, you can spend your money more judiciously by hiring experts and presenting testimony.

My firm strategizes every case from the beginning to the end.  We work  through small trade-offs at the beginning of a matter that  create a greater likelihood that, as the matter plays out to its conclusion, my clients are in the best position to take the things that they want.  Now, this often does not turn into the type of moral victory that they set out to achieve at the outset of the case, but legal victories taste much sweeter than moral victories, and they last much longer too.