Winning a Divorce?

IMPORTANT NOTE: The article below provides some law that is applicable to New York. Remember, divorce law is different from state to state so consult with your attorney about any specific laws that you may have a question about.

Winning a Divorce
(Thanks to J. Douglas Barics (New York lawyer - www.jdbar.net) for this article.)

During an initial consultation, I am sometimes asked how many cases I have won. It’s a legitimate question. It’s also a fundamentally wrong approach to a divorce. For most civil cases, there is a clear winner and loser. If the plaintiff prevails at trial, he or she is compensated for whatever wrong befell them. Likewise, if the defendant prevails, they have defeated a claim brought against them for any number of reasons. Boiled down to its lowest form, a civil trial is simply a plaintiff saying “you did something wrong” and the defendant saying “no I didn’t.”

But there is no such distinction in the vast majority of divorces. Instead, a divorce is far more closely related to the dissolution of a business partnership. It doesn’t matter why the partnership is ending, that’s simply a given fact. What the courts are concerned with is how to fairly divide the marital assets between both spouses. Likewise, for spousal maintenance, an award of support isn’t punitive; it’s designed to rehabilitate a spouse to become self supporting whenever possible. Child support is set by statute, and varying from the CSSEA guidelines is very rare indeed.

Even custody doesn’t fall neatly into a “winner” and a “loser” in a conventional sense. Custody is decided upon what the court determines to be in the best interests of the children, and in doing so, will usually look to determine who is the better parent, as opposed to who is the worst parent.

Then of course there are the tactical aspects of winning and losing which are not apparent to laypeople. For example, if someone is facing a trial and may be liable for a million dollars, but their attorney is able to settle their case for a small fraction of that amount, is that considered winning or losing? Now turn this example on its head. Suppose someone is asking for one million dollars, and their attorney is able to settle for nine hundred thousand. Is a guaranteed win of 90% of what they are seeking a win or a loss? Remember, not only did they face the possibility of losing at trial, but also subsequent appeals and possibly years more litigation.

Two good but extreme examples help illustrate just how hard it is to classify winning and losing. The first was a custody case I had several years ago. I represented the husband. His wife was seeking temporary custody of their child. What made this case very difficult was that the husband’s parents also supported the wife; there had been a bad family fight and were taking their daughter in law’s side to punish their son. My client also wanted temporary custody too. During the pendente lite hearing, I was able to show that neither of the husband’s parents were credible, and discredited much of the wife’s allegations. The end result was the judge denying both requests.

In addition, the wife’s claims for temporary support and exclusive use of the marital home were denied as well, since the court set and fixed both party’s financial responsibilities pending the trial.

I was pretty happy with the results. For temporary custody, the odds were stacked against my client, and not only had I maintained the status quo, but I had the judge rule early in the case that the wife was not credible in her claims. This was a perfect set up to prevail on a full custody trial down the road. Likewise, the wife’s financial requests were denied as well.

My own views aside, the husband felt that he “lost” and promptly found a new attorney who promised he would “win” custody. Several year and several lawyers later, the husband still hasn’t “won” yet, and I suspect that he always feel like he lost.

In the second case, I represented the wife. Without going into details, the husband was determined to litigate every issue. We had the divorce, numerous motions, and related family court matters. The wife won on every significant issue. The husband appealed each loss, and we won on every appeal. The divorce went to trial, and we prevailed on every issue. Following the divorce, the husband brought numerous post judgment motions and family court proceedings. From a legal standpoint, we were running circles around him. Yet I would not classify this as a win by any means. We “won” the case when we changed tactics, the wife learned how to represent herself pro se on the simple issues. She also learned how not to let it show that any of this was bothering her. Perhaps she had even reached a point where it wasn’t. But once the ex husband realized that he wasn’t making his ex wife spend a small fortune in legal fees, and wasn’t bothering her the way he used to, the barrage of litigation stopped. In that case, breaking the pattern of control was winning.