Telling It To The Judge

Heading to court for many family law litigants is a scary process; a trip many litigants will try and avoid all together during their family law matter. Indeed, courtroom proceedings are unpredictable and can become costly with attorneys and witnesses present, too. Litigants often wonder if the judge will be in a good mood, whether the judge reviewed the pleadings, and whether the judge will understand their situation. Throw in the notion that your soon-to-be ex-spouse, or the absentee parent of your child, will likely be present, and the court proceeding can become a very emotional situation.

One of the more important elements in a court proceeding is telling your story to the judge and considering how that story will be understood by the judge. Sometimes, facts that are personally important to the litigant may not be compelling to the judge. 

For example, the fact that your spouse had an affair will likely be an emotionally devastating fact, and a fact that is compelling part of your divorce narrative, but may not be important to the judge. California is a no-fault state so the fact that your wife had an affair will not influence the judge’s decision. What will, however, impact the judge is if your wife spent community property funds on her boyfriend during the marriage or violated her fiduciary duty while engaging in the affair. Indeed, this was an important factor in Donald Sterling’s divorce, the former owner of the Los Angeles Clippers professional basketball franchise of the National Basketball Association. While it was likely terrible for Donald’s ex-wife, Rochelle, that Donald had affairs during the marriage, one of the legal issues in their divorce was about whether Donald’s extravagant gifts to his mistresses, without Rochelle’s consent, violated California’s law giving spouses equal rights to property acquired during the marriage. 

When it comes to telling your story to the judge, a litigant and their family law attorney need to balance the emotional grievances between the spouses with the true legal issues in the case. Here are some things to consider: 

  • Be able to back up your claims. An integral aspect in developing your story for the judge is determining whether you have admissible evidence to support your allegations. For example, if you claim that your spouse is an alcoholic, do you have evidence to support your claim? Have you smelled alcohol on their breath? Seen the empty bottles in the trash? If you’re going to claim your spouse is an alcoholic, you must have personal knowledge (what you’ve seen, heard, smelled) to back up your claim.
  • Why is this important to your story? Always consider how each of your contentions will support the significance of your story. Ensure that the statements you present in your story are integral to the specific issue before the judge. Events that transpired 10 years ago may be too remote in time. If you are referring to a particular event or circumstance, you must make sure that its properly identified (who, what, where, when and how) and actually related to the issue before the judge. 
  • Consider your attitude and tone. What do you want the judge to know about you? What does your story tell about you? Judges are extremely intuitive and will pick up on litigants’ stories that sound retaliatory and malicious. Consider how you want the judge to perceive you based upon the story you put forth to the judge. 
  • What do you actually want the judge to do?  After you’ve told your story– backed up with admissible evidence and supported by a constructive and effective tone and approach–make sure your requested relief from the court is supported by evidence, law and is clear. The last thing you want is to be unable to formulate what you actually want the judge to do.  

While court may be a terrifying and intimidating experience for many people, having a strong family law advocate to properly guide you, manage your expectations, and provide counsel to you in framing your personal narrative is truly a priceless component in any family law matter. Most people get one shot in the front of the judge: make it count.