“Some things you must always be unable to bear. Some things you must never stop refusing to bear. Injustice and outrage and dishonor and shame. No matter how young you are or how old you have got. Not for kudos and not for cash: your picture in the paper nor money in the back either. Just refuse to bear them.”
William Faulkner, Intruder in the Dust

If you are a family law litigant who perceives themselves to be wronged, you may be tempted to get on the internet and read up on it.  You will instantly note a large number of websites dedicated to lambasting judges, family law attorneys, the system, etc.  Although I, myself, indulge in criticism of all three, I do not share the viewpoint or make common cause with many of these folks because I don’t agree with much of what they say.  For example, I don’t really like judge-bashing.

The vast majority of judges, including of course, family law judges, just go to their job trying to do the best they can with a difficult job.  They listen to the evidence, listen to the arguments, and try to make a fair decision.  They aren’t getting paid off, they don’t hate women, or men.  Most of the time they have no idea who you are or what your case is about, even if you have come in front of them multiple times.  Your file sits on a shelf, and when it comes time they pull it out, read it, and try to do the right thing.  At the end of the day there is usually someone unhappy with the decision.

The people who are on the end of the losing decision, in a situation that is so incredibly personal, where it involves an ex-spouse, or worse, children, can become detached from reality.  This assumes, of course, that they were attached to reality in the first place.

The real problem, and the problem that sits at the very core of why family court struggles are so difficult for judges to rule on correctly, is that there are inherent flaws in the system which are exploited by family law attorneys in order to prevail.  What are they?

  1. Nobody knows who to believe.

Anyone who has followed my blog knows I have written extensively about personality disorders in family court and the ability for narcissists to lie convincingly while people telling the truth, at least to the untrained observer, can appear less credible.  Judges are lawyers, and all of them come with varying levels of ability.  But the one thing most lawyers have in common is an unfounded confidence in their abilities to determine the truth of a matter based upon spoken testimony.  Good lawyers and good judges check the documentation.  If there are $400,000 worth of checks written in the name of husband’s company sitting before you, and you rule that there is “no evidence” of fraud when father claimed his company was shut down years ago, you should get another job.

2.  There is too much paper.

Once the file starts to build, the motions can start flying back and forth so much that nobody has time to review the file, not even the lawyers helping build it.  This means that the judge has to choose a few documents and base his or her decisions on those documents.  The truth can be buried under reams of paper, and unscrupulous attorneys know how exactly to do that.

3. Dirty tricks work.

Contrary to the conventional wisdom and party-line bandied about in various official-sounding State Bar or ABA pronouncements, lawyers use a lot of dirty tricks, and judges know it.  For example, one particularly effective attorney simply fails to respond to communications, capitalizes upon errors, creates a false record and states things are simply not true (and provably so) with impunity to the court.  When the other party acts, they are instantly carpet-bombed with motions, discovery, whatever.  The response of the courts to unscrupulous behavior is not always consistent, and often lackluster.  This is because courts are overwhelmed with accusations of lying, perjury, unethical behavior etc. and at a certain point just give up trying to figure it out.  They are NOT corrupt.  They are emotionally and mentally exhausted.  If you are fortunate enough to have a talented judge willing to take the time and effort to figure out what is happening, you can get far.  If not, cut your losses.  And, contrary again to the conventional wisdom, such attorneys don’t have a bad reputation.  They quite often end up in positions of power and authority.  Some of them end up judges.  I don’t use dirty tricks, but I do litigate more aggressively against such “scorched-earth” lawyers by reviewing the documentation over and over until I find inconsistencies (which there always are) between the evidence and the story.

4. The people with money win

Just like any other area of law, the people with money can file more motions, hire more attorneys, get better expert witnesses and get more results with more money.  Although in California we have fee-shifting statutes like Family Code 2030, in which the court can award attorney fees to the party with less funds, judges are reticent to do so because it does nothing to help them clear the docket of their caseload (so they can help other litigants to have their day in court) and they may be awarding fees to someone who is making trouble.  It’s a really tough call.  An easy decision to make, one which again, clears the docket and resolves a case, is to let the person with money win.  The really big problem is that it is very common for parties to misrepresent their income to avoid awards.  In one case, father lives in a house worth several million dollars yet pays $1400 a month in child support and the evidence shows he received several million dollars a few years ago.  Because of the way the system works, the judge can’t really consider this information.  People unfamiliar with the legal system think it’s crazy, but if something isn’t “in evidence” then the court can’t consider it, and it isn’t because the judge is a crook.  It’s like asking the DMV to grant you a trucker license without a test.

So at the end of the day, normal, honest, reasonable people who are good parents can get shafted.  In one case, after a twenty-year marriage mother lost her house, her car, received no child support or spousal support, her disabled son was alienated from her, and even after settling the case for a promise to pay the community debt (in exchange for her interest in the community business and no support) she was sued by a creditor and driven into bankruptcy.  When she got a judgment for the amount of the debt ($150,000) father declared bankruptcy.

When the bankruptcy court told father he still owed the whole amount, a state court judge voided her judgment, almost two years after she obtained it, by claiming that an error in the dismissal (found nowhere in the court record except a single form) voided it.  Although there was no conceivable reason for her lawyer to do that, and everything in the court record showed otherwise, the appeals court upheld it.  Such decisions certainly have some unspoken rationalization behind them that someone, somewhere thinks makes it wise, but in the end such decisions create a perception in large numbers of citizens that our courts lack legitimacy.  That matters to me because at the end of the day, I am not just looking for a payday.  I need my clients to believe that they have a fair shot in a non-rigged system.