The end of a relationship is always painful and is usually accompanied by feelings of loss, disappointment and anger. Underlying the more apparent emotions is almost always a great deal of fear, primarily the fear of the unknown. What will happen to the children? Will I be financially secure? How much change am I going to be asked to tolerate? What will my former spouse do during this process? How much am I going to have to pay for all of this? One important way of calming these fears is to find out as much as you can about the process you are about to go through. Although the answers to these questions will may remain somewhat murky until your case is finalized, the more you know the more you will have armed yourself against the unreasonable fears and expectations that often arise in the absence of any information at all. It is our hope that the knowledge you gain from this web site will be helpful in calming your fears and establishing positive (and realistic) expectations.
California is a “no-fault” state. That means a judge, in making his or her decisions, is generally not allowed to consider “bad behavior” (with a couple of exceptions described below). Which isn’t to say that attorneys and clients don’t try to tell the judge about the bad behavior of the other party in an attempt to persuade a judge to rule in their favor. The traditional litigation process (the process of preparing and going to court) usually contains just enough complaining about the other party’s behavior (before the judge shuts it off) to be extremely upsetting, while being completely unsatisfying to the person hoping to obtain “justice.” Traditional family law litigation has a reputation for being a horrible experience for the parties involved for a very good reason: because more often than not it is. Even when you “win,” you lose because you rarely get everything you asked for, you usually end up feeling that the judge didn’t entirely understand you or listen to what you had to say. At the same time you’ve been forced to listen to your spouse complain about you, more often than not inaccurately. When you attempt to complain about your spouse or to “defend yourself,” you are left with the distinct impression that no-one cares. An impression that is probably accurate. Worst of all, the outcome too often feels somewhat random. And for this you pay large amounts of attorney fees.
There are a couple of exceptions to the rule that “bad behavior” is irrelevant. The first and foremost exception is when a court is asked to decide on a parenting plan that is in the child’s best interests. It is not uncommon for a parent to allege that the other party’s “bad behavior” shows that it would not be in the children’s best interests to spend significant time with that parent. Notice, however, that the “bad behavior” most often complained about in a marriage is far more relevant to being a “bad spouse” than a “bad parent.” Also, bad behavior that took place years ago is not usually given much weight by a judge deciding custody and visitation today. Drug and alcohol abuse is the most common relevant “bad behavior” when it comes to custody and visitation. Care must be taken in advancing this issue, however, as one can hardly suggest that a drug or alcohol abusing parent should be limited to every other weekend. This is an all or nothing argument.
Another exception to the rule excluding evidence of “bad behavior” involves incidents in which one of the parties is alleged to have breached their fiduciary duty to the party in the management of property. This does not mean having made a mistake, or even being negligent, careless or foolish in managing investments. This usually involves a spouse lying when asked a specific question about an investment or transaction, resulting in a significant loss to the other spouse as a result of the lack of disclosure. Although this is a technical area beyond the scope of this article, it is sufficient to say that this is an example of an area in which “bad behavior” can be legitimately raised.
Litigation isn’t the only way to resolve family law problems, but it is the “default” process. In other words, if you and your spouse can’t agree to another way of resolving your conflicts than by default you have “decided” to use litigation. You should recognize that most cases that use the litigation process are eventually resolved through a settlement agreement rather than a trial. However, these settlements are usually arrived at after several hearings in which one party asks for temporary orders, formal (and therefore expensive) discovery is conducted (the process of demanding information from the other side), and at the very least a series of letters between the attorneys in which implicit or explicit threats are made (“if you don’t settle on our terms, we will go to court, it will be expensive, and you will be worse off”).
Our office can and will represent our clients in litigation if that is the “decision” they have made. Having been certified as a specialist in Family Law by the California State Bar Board of Legal Specialization, we are exceptionally well qualified to do so. We recognize, however, that we provide greater value to our clients when we are able to assist them in achieving a peaceful and reasonable resolution of their case. Although these methods of resolving your divorce are not necessarily for everyone, we strongly encourage you to learn as much as you can about these processes and give them serious consideration.
The Quest for a “Peaceful” Resolution: Mediation and Collaborative Practice.