Divorce Court: understanding what a Judge can and cannot do

Much of the angst associated with divorce results from a misunderstanding of the court's role in the process. Many times I've heard, as a mediator and as an attorney, "I'll just take it to court", meaning the Judge will make all of this fair for me.

While the courts do strive for fairness, there are limits on what a judge can or cannot do, especially in the current challenging economic times where job losses and foreclosures are on the rise. No matter what the economic situation of a couple is, a judge cannot make a situation fair from an emotional standpoint.

One of the most important things a person can do to avoid a costly divorce is to avoid unrealistic expectations. No one will walk away "with everything" and no judge will decide if your spouse was a good partner to you. In addition to emotional expectations, a person's economic expectations need to be held in check as well.

The information below was excerpted from a divorce magazine article featuring Judge Toler, of Divorce Court fame:

The judiciary is required to provide both fairness and resolution, a difficult thing to do in a divorce. What could be more complicated than untangling lives that have been intertwined on every level for years? How can the law address all of the nuances of everyday life and the entire range of human behavior?

The answer is, it can't. Unfortunately, in order to achieve resolution, sometimes the law must make generalizations with respect to what is fair. So your court's answer to "how do we end this" may seem somewhat arbitrary. Sometimes the law simply has to say: "This is the way we are going to do things."

What the divorce courts say

Canada and many U.S. states, including Florida, have adopted child support guidelines, a mathematical formula in which you plug in the numbers (income and the like) and do the math, and out comes the support amount.

In a community property state, the court looks to divide marital property 50/50, no matter who made what during the course of the marriage.

In an "all property" state, the law may not distinguish between marital and separate property at all.

Canada and most U.S. states (with the notable exception of New York, where fault is an issue in contested divorces) provide no-fault divorces. That means the court will not consider either spouse's misconduct during the marriage in determining support or property division, except in cases where a spouse's misconduct has depleted assets.

These generalizations notwithstanding, it doesn't mean that a judge has no ability to make equitable determinations based on individual circumstances. Judges almost always have some judicial discretion. That's the leeway the law gives to judges in implementing those general rules. Sometimes, the law will give the judge the ability to consider not only the factors outlined by the statute but also any other factors that will promote a just and fair outcome. In some no-fault jurisdictions, a judge can consider a party's misconduct if that party's actions are sufficiently outrageous or depleted the marital assets. Even when the law requires judges to follow mathematical support guidelines, a judge may deviate from them in certain situations, although they are typically required to provide written support for their decision.

In sum, the Court tries to strike a balance between applying the law and being fair. But, in the end, the court gives you the most important thing of all: resolution.