Law Pointers

A Family Court Judge talks about effective preparation for court — and how to achieve results in court by utilizing all available resources.
By Hon. Kathleen M. McCarthy

Back in law school, my trial-practice professor lectured to us to always assume the judge knows nothing about the law of our cases. He advised us to “spoon-feed” the judge all detailed facts of our cases and the applicable law necessary to lead the Court to our desired result. I was both amused and taken aback, assuming he meant that judges are inept at their jobs. Then I thought, okay: feed the judge some meat and potatoes and a full stomach would produce a satisfied result. Now, I think he may have left something out.

As a judge in the Family Division of the most populous county in the State of Michigan, I now more clearly understand his wisdom. Not about the judicial ineptitude, mind you, but about the importance of bringing to the court’s attention all facts necessary upon which the court can make a fair and informed decision. In Michigan, there is no right to a jury trial in domestic matters. The judges of the Family Court are the sole fact-finders and decision-makers. Obviously, if a lawyer provides a great deal of quality information, the judge is better positioned to arrive at a truly fair and equitable decision. This, I am sure, is not some enlightening bolt of wisdom that knocks you off your feet.

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It’s a common story heard or experienced by most of us. It begins like this, A beautiful girl and a handsome guy meet and start liking each other and soon they realize that its impossible for them to be separated. Then they decide to get married and that’s when they face the reality which they never realized as they were blindly in love. And then the thin line between love and hate melts away and all they are left with is dispute, disappointments and regrets.

But things can be worked out, the closure of one door of happiness doesn’t mean all other have also been locked. It’s just that you have to change your point of view and start looking at the open door. A new vision will allow you to have a better understanding of things. Divorce can just be a way out. Happiness is simply a matter of a choice, nobody else but it’s only you who artifices your own happiness.

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This past week, typically mindless commentary during a popular morning talk show caught my attention. All of a sudden amidst my morning routine, I heard words and phrases like “solution” and “cost-effective” and “best interests of the children” and… “divorce.” The host claimed there is a new phenomenon in which a married couple remains together, in almost every sense of the word, despite the fact that both desire a divorce. He referred to it as the “non-divorce” divorce. Supposedly, this trend is gaining popularity as the solution to a failed marriage.

The “non-divorce” divorce is a mutual verbal agreement between two married individuals who want to keep their marriage in tact, but fully accept that the relationship is over. The goal is to feel divorced while continuing to live together and not get a divorce. In other words, the couple does not want to go through the divorce process, but they don’t want to reconcile either. They don’t want to hire attorneys, file papers, argue over custody or support, lessen the time their children see either of them, or lose one-half of their financial assets. So, they decide to remain as if they are married. They live in the same family home as roommates, participate in their children’s lives as they had before they wanted a divorce, and maintain/preserve the marital estate.

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The following Q&A’s have been provided to help you better understand Family Law.

Q. I recently divorced my husband who has left me with the four children and he has suggested that as we have no assets he will give me half of his superannuation. What should I do as I am unemployed and on a single mother’s supporting pension and he does not pay child support?

A. Unfortunately you are being very badly treated as your entitlements would include spousal maintenance, child support (see the child support agency) and access to at least 50% of his superannuation. You need to seek urgent legal assistance and perhaps legal aid is where you should look first.

Q. I have been divorced from my former husband for over seven years and although I am in employment he has been on the dole throughout and has a history of violence. Recently he approached me and suggested that as he was now in a stable relationship he would like to have contact with our son. What should I do?

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It is no secret that people engaging in a divorce experience financial and emotional trauma that is only made worse by divorce lawyers and the adversarial system. So I am usually preaching to the choir when I tell horror stories of some of the cases I saw in the 8 years I practiced adversarial law. I was a child of a litigated divorce. I taught emotionally disturbed children from dysfunctional families for many years, I was a divorce attorney for eight years, and now I only do divorce mediation. Having witnessed our legal system from all sides, I can safely say that the whole context of how family disputes are settled in court today is not in the best interest of families. This is a call to arms. I am not even going to pretend this is an unbiased “news” article.

We who fight on the front lines on a daily basis, working with the emotionally vulnerable who feel as though the rug has been pulled out from under them know that the last thing a family in trouble needs is the “assistance” of counsel who could be throwing gasoline on the fire in order to line their own pockets. Most of you probably don’t know that family law attorneys are the ONLY kind of lawyers in California whose fees are statutorily protected by the equity in the family home. Divorcing couples may not be aware that they agreed to a lien on their homes and a possible forced sale at the end of the case when they sign their lawyer’s fee agreements. People need to know that they will get more and lose less by cooperating with their ex-partner than by litigating the matter.

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The worst thing you can do is go to a lawyer without first becoming informed and prepared. It is not difficult to learn what you need to know, but very dangerous not to. Here’s why:

1. In a divorce, the law is concerned with only three things—property, support, and parenting arrangements for minor children. That’s it; that’s all. If there is no legal opposition (papers filed in court) to your requests on these three subjects, getting a divorce is simply a matter of red-tape and paperwork, easy to do. The trouble comes when parties can’t agree about these issues and do things that do more harm than good - like taking the divorce into a lawyer’s office and into court while the disagreements are still unresolved.

2. Very few divorces hinge on valid legal issues. Over many decades, after millions of California divorces, almost every conceivable issue has already been decided in great detail and can be looked up in our enormous body of cases and statutes. This means there is only rarely a fact situation where we don’t know ahead of time pretty much what any judge would order, so there’s really no good legal reason for people to disagree, at least none worth the financial and emotional cost. The reason people argue is not about the law but about emotional things like hurt, fear and anger. Even more, it is because arguing is the fundamental nature of law practice and the legal system.

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No one gets married with the intention of getting a divorce. But certain situations may arise in the life of a person where divorce may seem to be the only way as well as the best option to come out of the situation. Divorce can turn out to be a bitter and ugly experience for a person if not dealt with properly. There are many legal nuances associated with this entire procedure, and in such a scenario a matrimonial lawyer can be your best guide. Matrimonial lawyers are specialized to deal with each and very aspect relate to wedding and divorce.

Well handling divorce cases are not the only things which a matrimonial lawyer does for his/her client. Drawing up a prenuptial agreement is another aspect of wedding where a matrimonial lawyer can help you out. Prenuptial is an agreement which is drawn up by couples prior to the marriage. Ideally, a prenuptial agreement includes settlement of any dispute which may come up if a couple decides to separate or divorce. The contents of a prenuptial agreement differ from couple to couple.

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When going through a divorce it is very important to protect your assets. It is possible for an unsuspecting spouse to find on top of everything else, bank accounts were raided, stocks sold and insurance policies cashed.

If you are a woman going through a divorce try to have joint liquid accounts transferred to your name. You may have to get your husband to sign documents but some banks just need one party to do this.

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What is Divorce, What are the steps of getting a divorce, Cam I get a divorce, How long do we have to be apart before we can get a divorce all these questions are regular questions asked my a husband or wife who are considering a divorce.

Divorce has the definition of the dissolution of marriage the break down the ending of the marriage before either partner dies or the legal act of ending a marriage. A divorce can be annulled where the marriage is made void via the effects of marriage including child custody, distribution of property and spousal support.

I will now explain the process of applying for a divorce and other information you may need to know: -

Either party can make an application for a divorce, the person who makes the application will be known as the ‘Petitioner’ and the other party named as the ‘Respondent’, if there is any other people involved these will be known as ‘Co-respondents’. You will need to prove the marriage has broken down by either of these points:

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